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Subsplash Terms of Use

Last updated August 16, 2017 – Version 3.1

PLEASE READ THESE TERMS OF USE CAREFULLY.  THIS IS A LEGALLY BINDING AGREEMENT.  YOU MAY ACCEPT THESE TERMS BY:

(A) CLICKING TO ACCEPT OR AGREE TO THESE TERMS OF USE, WHERE THIS OPTION IS MADE AVAILABLE TO YOU BY SUBSPLASH IN THE USER INTERFACE FOR ANY SERVICE; OR

(B) BY ACTUALLY USING SUBSPLASH'S PRODUCTS, SOFTWARE, SERVICES, OR WEBSITES (COLLECTIVELY, THE “SERVICES”).  YOU UNDERSTAND AND AGREE THAT SUBSPLASH WILL TREAT YOUR USE OF THE SERVICES AS ACCEPTANCE OF THE TERMS OF USE FROM THAT POINT ONWARD.

These terms of use (the “Terms of Use” or “Agreement”) govern your access to and use of the Services offered by Subsplash, Inc. and Subsplash Wallet, LLC (hereinafter collectively referred to as “Subsplash”) as an end user.  They do not alter in any way the terms or conditions of any other agreement you may have with Subsplash, its subsidiaries, or affiliates.  If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Use on such entity's behalf.

Subsplash reserves the right to change or modify any of the terms and conditions contained in these Terms of Use or any policy or guideline, at any time and in its sole discretion.  Any changes or modification will be effective immediately upon posting of the revisions on the Subsplash’s websites or Services. Your continued use of the Services following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Terms of Use and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Services.  If you do not agree to the amended terms, you must stop using the Services.  You warrant and attest that you are at least eighteen (18) years of age.

All other questions or comments about the Services should be directed to legal@subsplash.com.

1. Privacy Policy and Feedback

Please refer to our Privacy Policy for information on how Subsplash collects, uses and discloses personally identifiable and other information from its users.

If you provide us with any feature requests, comments, suggestions or other feedback ("Feedback"), you hereby: (i) agree that such Feedback is provided on a non-proprietary and non-confidential basis, and (ii) grant us a perpetual, non-exclusive, worldwide, fully paid-up, irrevocable license, with the right to sublicense through multiple levels of sublicensees, to incorporate, disclose, and use without limitation the Feedback for any purpose.

2. Registration for the Service

If you wish to utilize the Services, you will be required to register by providing information about yourself and, if you are registering on behalf of an entity, information about that entity (such as identification, credit card information, and contact details).  You agree that any such information you provide is accurate, complete and updated.  Failure to do so constitutes a breach to these Terms of Use and may result in a termination of your account and access to the Services.  You are responsible for maintaining the security and confidentiality of your account password.  You are also solely responsible for all activities that occur through your User ID and password.  You agree not to access or use, or attempt to access or use, the Services or any part thereof using the identity or the Registration Data of any person other than you.  You agree to immediately notify Subsplash of any unauthorized use of your User ID or password.  From time to time, you may be asked to confirm your account via an email message. If such account is not reconfirmed, the account may be deleted by Subsplash. Once your account has been deleted, your User Content may be retained by Subsplash and may or may not be displayed.

3. User Content and Acceptable Use

The Services may allow you to post content (“User Content”).  Subsplash has the right to refuse any User Content.  You agree that Subsplash, at its sole discretion, has the right to screen, reject, or remove any User Content, or portion thereof, posted to our servers that infringes our, or any third party intellectual property or other rights, violates these Terms of Use or our other policies, or is otherwise objectionable. Subsplash reserves the right to disclose any such material posted to our servers as necessary to satisfy any applicable law, regulation, legal process, or governmental request.

You should save all of your User Content through alternate storage solutions inasmuch as Subsplash does not warrant the security or reliability of its Services.

We value integrity, truth, and respect for others, and we strive to avoid offending users with User 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.

In addition, the following is prohibited:

• Harassment or perceived harassment of another person;

• Unsolicited mass mailings or "spam";

• Posting User Content 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 or images, video, or other objectionable content (e.g. nudity, bestiality, pornography);

• Posting User Content that is inappropriate based on the subject matter and the audience;

• Posting User 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;

• Posting User Content that violates intellectual property rights of any person;

• Impersonating any person or entity or otherwise misrepresenting your affiliation with a person or entity;

• Posting private or confidential information of any third party without their express consent, including, without limitation, personally identifiable information, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers;

• Posting any User Content that, in the sole judgment of Subsplash, may expose Subsplash to any harm or liability of any type.

You agree that you will only utilize User Content that you believe to be true and you will not:

• purposefully provide false or misleading information;

• use the Service to violate the security of any computer network, crack passwords or security encryption codes; transfer or store illegal material including any deemed threatening or obscene;

• create user accounts by automated means or under false or fraudulent pretenses;

• scrape or collect information about other users in an automated fashion.

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 User Content, and terminating the violator's Service without refund.

By posting User Content, you grant Subsplash and its affiliates the perpetual, irrevocable, worldwide, royalty-free, freely transferable, and sublicensable (through unlimited levels of sublicense) non-exclusive right to create derivative works of, use, reproduce, modify, transmit, publish, publicly display and distribute, and advertise on and around, and search for purposes of providing relevant advertisements, such User Content and derivative work.  You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content and to grant the rights granted herein; (b) the User Content is accurate and not misleading; and (c) distribution of the User Content you supply in accordance with your direction does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity. You hereby waive any moral rights you may have in such User Content under the laws of any jurisdiction. We may (but are not obligated to) display your User Content, including your username and your actual name (according to the preferences you select). With regard to third party advertisements, Subsplash is not responsible or liable for the content of such advertisements.

4. Payment

If you purchase products or services from Subsplash, you will be charged in advance. No refunds shall be issued except within Subsplash’s sole discretion.  All charges and payments shall be in U.S. dollars.  For those customers making payment by credit card, ACH, or other method, you authorize Subsplash to debit your credit card or other account (as the case may be) for amounts authorized.  Subsplash reserves the right to collect certain taxes or other assessments from you in order to comply with local, state, provincial, Federal, or international laws and regulations, as required now or later imposed. If you claim exemption from any taxes, you shall provide Subsplash with documentation required by the taxing authority to support an exemption.  If you have subscribed for a paid service Subsplash reserves the right to change the price of its Services upon (30) days notice to you and you will be given the opportunity to terminate the Services prior to such increase becoming effective.

5.  Subsplash Giving

If you register and/or utilize the Subsplash giving functionality (“Subsplash Giving”) provided by Subsplash Wallet, you agree to the following:

a.  In addition to the payment provisions contained in Section 4 above, you appoint Subsplash Wallet as your agent to process online donations for the amounts you select for the particular organization (“Donee”) selected by you.   Subsplash transaction fees shall be deducted from online donations at such times as agreed by Subsplash Wallet and Donees.

b.  Only the authorized credit card or account holder may donate through Subsplash Giving. A third party may not use the donor's card information or enter donations on behalf of the donor. This practice may constitute "credit card laundering" and may violate credit card usage agreements. Subsplash Wallet is hereby authorized to report any such abuses to the appropriate authorities.   All donations made through Subsplash Wallet are refundable only with the agreement of the Donee and completed when made and Donees have complete discretion and control over the use of all donated funds.

c.  Federal law prohibits charities from promising or providing goods and services (e.g., tickets to events or raffles) in exchange for making a donation. Subsplash Wallet may only accept pure contributions and not part gift and part sale transactions.

d.  Donor information will be shared with the Donee.

6. Consent to Receive Emails and Notice

As long as you maintain an account, you may not "opt out" of receiving account-related emails from Subsplash.  The parties hereto may give legal notice by means of electronic mail, which electronic mail shall be considered delivered when sent.  The notice address of Subsplash shall be support@subsplash.com (or such other address as is provided by Subsplash to you) via email at your Notice address and your address for the receipt of notices pursuant to this Agreement shall be the current email address listed by you in your account profile. You also agree, unless you opt out, to receive marketing emails related to the Services.  You may opt out of receiving marketing emails related to the Services at any time.  

7. Copyright and Limited License

Unless otherwise indicated, the Services and all content on the Services, including, without limitation, the Subsplash logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, the "Materials") are the property of Subsplash, its licensors or its customers and are protected by U.S., Canadian and international copyright laws.

To the extent that Subsplash grants you access, you are granted a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services.  Such license is subject to these Terms of Use and does not include or authorize: (a) any resale or commercial (non-personal) use of the Services or the Materials therein; (b) the distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the Services or the Materials, or any portion thereof; (d) use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Services; (e) downloading (other than page caching) of any portion of the Services, the Materials or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Subsplash’ computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services; or (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 Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (i)any use of the Services or the Materials other than for their intended purpose; (j) copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of any software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Subsplash, in writing. You may not access, copy, assess, disclose, display, or otherwise use the Service for purposes of competitive analysis.  Any use of the Services or the 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 Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

8. Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act (DMCA), the Copyright Act (Canada) and other applicable law, Subsplash has adopted a policy of terminating, in appropriate circumstances and at Subsplash's sole discretion, access to those who are deemed to be repeat infringers. Subsplash may also, at its sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others.

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 content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to inform you if we receive a notice from a third party that User Content you have posted infringes upon such third party’s copyright and to inform such third party that we have provided you with such notice.  Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:

Subsplash, Inc

Address: 3257 16th Ave W #200, Seattle, WA 98119

Email: legal@subsplash.com

10. Trademarks

Subsplash®, The Church App®, and The Church App by Subsplash™ are trademarks of Subsplash and they may not be used or imitated, in whole or in part, without the prior written permission of Subsplash.  You may not use any metatags or any other "hidden text" utilizing said trademarks or any other name, or product or service name of Subsplash without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark, and/or trade dress of Subsplash and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and logos displayed through the Services are the property of their respective owners.

11. Hyperlinks

You are granted a limited, non-exclusive, non-transferable right to create a text hyperlink to the Services, provided such link does not portray Subsplash or any of its products and services in a false, misleading, derogatory, or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time. You may not use a Subsplash logo or other proprietary graphic to link to the Services without the express written permission of Subsplash. Further, you may not use, frame, or utilize framing techniques to enclose any Subsplash trademark, logo, or other proprietary information, including the images found through the Services, the content of any text, or the layout/design of any page or form displayed through the Services without Subsplash's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright, or proprietary right of Subsplash or any third party.

12. Third Party Content

Subsplash or its customers may provide links to web pages and content of third parties as a service to those interested in such links and content, and Subsplash may post third party content or allow users to post their content. Subsplash does not monitor or have any control over any third party content or third party websites. Subsplash does not endorse or adopt any third party content or third party website and can make no guarantee as to its accuracy or completeness. Subsplash does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any third party content or third party websites. You understand that by using the Services you may be exposed to content that you may find offensive, indecent or objectionable and you use links, third party content and third party websites at your own risk.  When you leave the Subsplash Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website or services to which you navigate from the Subsplash Services.

Subsplash is not the publisher or author of third party content. It is a passive service for storage and dissemination of the ideas and opinions that Subsplash users and vendors may choose to post.  Subsplash does not screen works before they are posted, and no prior approval is required for posting.  Subsplash’ activities are subject to the protections of Section 230 of the Communications Decency Act and the safe harbor provisions of Section 512 of the Digital Millennium Communications Act.  

13. Third-Party Goods and/or Services

The Services may also provide information regarding or link to certain applications, goods, and/or services provided or offered by third parties (collectively the "Third-Party Goods and Services"). Subsplash is merely an information provider and is not a referral service, and it does not recommend or endorse any such Third-Party Goods and Services or monitor or have any control over such Third-Party Goods and Services. Therefore, Subsplash makes no guarantee, representation, or warranty of any kind as to the quality, competency, value, reliability, responsiveness, accuracy, or completeness of any such Third-Party Goods and Services or the results obtained therefrom, and Subsplash assumes no responsibility or liability for any Third Party Goods and Services or for the actions or failure to act of those providing such Third-Party Goods and Services. You assume full responsibility for your use of any such Third-Party Goods and Services. In the event of a dispute between any consumer and vendor, the parties will work out the dispute themselves. 

14. Advertisements and Promotions

Subsplash may run advertisements and promotions from third parties as part of the Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Subsplash, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Subsplash is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party advertisers on the Services.

15. WARRANTY DISCLAIMERS

THE MATERIALS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SUBSPLASH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT, OR MATERIALS. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE THROUGH THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

SUBSPLASH IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS ACCESSED THROUGH THE SERVICES. WHILE SUBSPLASH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICES SAFE, SUBSPLASH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.

Subsplash reserves the right to change or delete any and all content and any Services at any time without notice.

16. 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 SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF OPPORTUNITY, 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 ANY USE OF THE SERVICES, THE CONTENT, OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE  SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS, OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM SUBSPLASH, 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’ 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 SERVICES, SHALL NOT EXCEED ANY COMPENSATION YOU PAID, IF ANY, TO SUBSPLASH FOR ACCESS TO OR USE OF THE SERVICES DURING THE YEAR PRECEDING THE ACT OR OMISSION OUT OF WHICH SUCH LIABILITY AROSE.

SUBSPLASH MAKES NO WARRANTIES REGARDING SECURITY OR RELIABILITY OF THE SERVICES.  

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.”

17. Compliance with Laws

You represent and warrant that your use of the Services shall comply with all local, state, provincial, and federal laws.

18. Indemnification

You agree to defend, indemnify, and hold harmless Subsplash, its corporate affiliates, independent contractors, service providers, and consultants, and each of their respective directors, employees, and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any User Content you post or your use of or inability to use the Services, including without limitation any actual or threatened suit, demand or claim arising out of or relating to the User Content, your conduct, your violation of these Terms of Use, or your violation of the rights of any third party.

19. Term and Termination

This agreement shall continue until such time as either party terminates.  You may terminate without cause by deactivating the account from “your account” page.   Subsplash has the right to terminate the Services without cause only by providing thirty (30) days prior notice to the email account listed by you in your user account information.  In the event this Agreement is terminated, Subsplash will make available to you a file of your data for download for a period of thirty (30) days after termination. You agree and acknowledge that .Subsplash has no obligation to retain your data, and may delete such data, thirty (30) days after termination.

20. Termination for Cause

Subsplash may immediately terminate this Agreement in the event of your material breach of the terms or conditions of this Agreement.  Any breach of your payment obligations or unauthorized use of your account will be deemed a material breach of this Agreement.  

21. Arbitration

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 (other than claims identified in the Subsplash Privacy Policy) 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.

22. Applicable Law and Venue

These Terms of Use and your use of the Services 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 above), any action at law or in equity arising out of or relating to the Services or these Terms of Use 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.

23. 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.

24. Severability

If any of these Terms of Use 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.

25. Relationship

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Subsplash.

26. Waiver

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.

27.  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.

28. Entire Agreement

This Agreement, together with the Privacy Policy, constitutes the complete and exclusive statement of the agreement between the parties with respect to the use of the Services and any acts or omissions of Subsplash and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties.