TERMS AND CONDITIONS
Date Last Modified: August 16, 2024
The Splashin mobile application (the “App”), and the related online and mobile services (collectively with the Website and the App, the “Services”) are made available by Splashin, LLC, a limited liability company (“Splashin”), subject to these Terms and Conditions (“Terms and Conditions”).
These Terms and Conditions apply to all Users, including Users who are simply viewing content available via the Service, Users utilizing free Services, and Users who have engaged for paid Services. These terms of Service shall apply to all users (“Users” and, collectively with “you” and through similar words such as “your,” etc.). Not all terms shall apply to all types of Users where specified in the Terms and Conditions.
By accessing any part of the Service, you are agreeing to the terms and conditions described below (the “Terms and Conditions”) AND THE TERMS AND CONDITIONS OF OUR PRIVACY NOTICE (the “Privacy Notice”), WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, you should not use the Service. If you are otherwise engaged with Splashin for specific Services through a subsequent agreement, that agreement shall control and supersede these Terms and Conditions. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE APP OR CONTINUE TO ACCESS OR USE THE SERVICES AND DO NOT REGISTER FOR AN ACCOUNT.
We reserve the right to refuse a User’s access to the Service for any reason, at our sole discretion. In addition, at our sole discretion, we may suspend or terminate a User’s account for any reason. Such termination of your account will result in your loss of access to the Service. We will not be liable for any decision to suspend, terminate or refuse service under any circumstances.
Some exceptions to the Terms may apply based on your country of residence. Splashin may also provide products and services which are governed by separate terms.
MANDATORY ARBITRATION NOTICE AND CLASS ACTION AND JURY TRIAL WAIVER.
These Terms contain a mandatory (binding) arbitration provision and class action and jury trial waiver clauses. Except for certain types of disputes described in the arbitration section below or were prohibited by applicable law, you agree that disputes between you and us regarding your use of the App or Services will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration, including as a class representative. The arbitrator’s decision will be subject to very limited review by a court. You will be entitled to a fair hearing, but the arbitration procedures are simpler and more limited than the rules applicable in Court. For more details, see below.
1. Compliance. To ensure you remain in compliance with these Terms and Conditions, Splashin recommends reviewing the current Terms and Conditions each time you access or use the Services. All access to and use of the Services, User Accounts within the App (“Accounts”), and the materials, content, information, and data contained on or provided through the Services and Accounts are subject to compliance with these Terms and Conditions and all applicable laws, rules and regulations. If you have any questions or comments regarding these Terms and Conditions or the Services, please contact Splashin at the contact information listed below.
2. General Use of Services. The Services are made available, subject to these Terms and Conditions, to allow you to (i) obtain information about the Services, (ii) register for an Account, and (iii) engage with the various interactive properties available on the Service. Subject to these Terms and Conditions, Splashin grants you a limited, non-exclusive, non-transferable and revocable license to download, access and use the Services solely for the applicable purposes described in these Terms and Conditions and for your personal, non-commercial benefit. Except as otherwise expressly set forth herein, you shall have no other rights to the Services, and no other rights shall be implied.
3. Who May Use Our Services. Unless stated otherwise for a particular portion of the Services, those under the age of 18 are not allowed to use the Services. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SPLASHIN DECLINES ANY RESPONSIBILITY REGARDING ANY ACTIVITIES CONDUCTED BY ANYONE UNDER THE AGE OF 18 AND RESERVES THE RIGHT TO IMMEDIATELY TERMINATE ANY ACCOUNTS IF WE BECOME AWARE THAT THE USER IS UNDER THE AGE OF 18.
4. Safe and Appropriate Use. While you are using our Services, please be aware of your surroundings, and play and communicate safely. You agree that your use of the Services is at your own risk, and that you will not use the Services to violate any applicable law, regulation, local/private policies or rules, or instructions as outlined in these Terms and you will not encourage or enable any other individual to do so. Further, you agree that in conjunction with your use of the Services you will not make available any unlawful, inappropriate, or commercial Content. You agree that you will not submit inaccurate, misleading, or inappropriate Content, including data submissions, edits, or removal requests.
5. Interactions with Other People and Game Management. Within the App, a User may act as either an Administrator (creator and manager of a game) or a Player (an individual player within a game created by an Administrator). As an Administrator, you may have specific obligations in addition to those applicable to Users more generally.
All Users agree that in conjunction with your use of the Services:
• You will maintain safe and appropriate contact with other players and other people in the real world.
• You will not harass, threaten or otherwise violate the legal rights of others.
• You will not trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be, including, but not limited to, when placing items for other players use on the map within the game or when attempting to retrieve items placed by an administrator.
• You will only enter into a game with Users with which you feel comfortable sharing your location information, and you will not misuse or inappropriately disclose others location information.
• You will only use brightly colored equipment (e.g. water guns, water balloons, etc.), will not use any equipment that resembles or could be mistake for an actual weapon, will not otherwise conduct the game in a manner that has the appearance of a situation that may endanger members of the public or violate the law.
• You will not wear disguises, masks, or otherwise conduct yourself in a manner that may alarm, frighten, or otherwise endanger members of the public or other Users.
• You will not otherwise engage in any activity that may result in injury, death, property damage, nuisance, or liability of any kind.
If you are Administrator, you agree that in conjunction with your use of the Services:
• You will not conduct a game in a manner that endangers Players or members of the public.
• You will not place items on private property, or otherwise entice users to trespass, violate property rights, or violate the law.
• You will not otherwise conduct a game in a manner that causes or entices users to violate these Terms, the law, or the rights of members of the public.
If you are a Player, you agree that in conjunction with your use of the Services:
• You are obligated to follow these Terms and the law regardless of how an Administrator is conducting a particular game. For example, the App does not distinguish between private and public property, and if an Administrator places an item on private property, you cannot trespass, violate these Terms, or otherwise violate the law.
If you have a dispute with any third party relating to your use of Services regarding the above, you release Splashin (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Nothing in this section shall limit or modify other indemnities or prohibitions provided for in these Terms.
6. Visitors to the Service and Account Creation. You can visit the public sections of the Service without identifying yourself or providing personal information. To access some features of the Service, you will have to create an Account. You may not have more than one (1) Account without Splashin’s permission, and you must access the Service and non-public portions of the Website and App through your Account. The security and confidentiality of your Account username and password is your sole responsibility. You shall ensure that no unauthorized person shall have access to your Account, username, or password and shall immediately notify Splashin of any unauthorized access or use of which you become aware. You agree to bear all responsibility and liability for all actions under or through your Account as well as all fees and/or charges incurred from the use of your Account, whether authorized or unauthorized. You may update your Account by changing the Account settings.
7. Registration Data. All of your information and data provided to Splashin in connection with registering for your Account (“Registration Data”) must be true, accurate, current and complete at all times. You must immediately update your Registration Data to keep it true, accurate, current and complete. Notwithstanding anything to the contrary, you hereby authorize Splashin and its affiliates, contractors and suppliers to use, copy, sublicense and disclose Registration Data (i) as part of providing the Services, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of Splashin’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, and (iv) as permitted by Splashin’s Privacy Policy. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your Registration Data, including, without limitation, to grant the foregoing rights to Splashin and its affiliates, contractors and suppliers. If you provide Splashin your email address, you hereby consent to and authorize Splashin to (a) send notices regarding the Services to such email address, instead of notice by other means such as mail, and (b) send other messages to such email address, such as changes to features of the Services and special offers (collectively, “Other Messages”). If you do not want to receive Other Messages, you may opt out of those emails by contacting us or clicking the opt-out link in those emails. Opting out of receiving Other Messages may prevent you from receiving email messages regarding updates, changes to the Services or offers.
8. Fees. We reserve the right, at any time, to change any fees or charges for Users (or to begin charging fees for any free service), provided that such changes will not apply to fees or charges paid prior to the time of the change. We will charge you sales tax as applicable to the Service or any order placed through the Service, based on your billing address. In addition, you will be responsible for all other taxes, levies, duties or similar charges, only excluding taxes based on our income.
9. User Content. The Services may contain User-generated or provided data, content, and materials (“User Content”). User Content is the sole responsibility of the User that submitted that User Content. Splashin does not control User Content generated or provided by Users and is under no circumstances responsible or liable in any way for any User Content that is made available through the Services. Splashin does not endorse any User Content, and does not warrant or guarantee the integrity, truthfulness, accuracy or quality of any User Content. Splashin reserves the right (but is not obligated) to edit or remove any User Content in whole or part, at any time and for any or no reason. You agree that Splashin is not liable for any loss or damage of any kind resulting from availability, access and/or use of any User Content. You further agree that the User Content that you may generate or provide through the Services shall be truthful and not misleading. You acknowledge and agree that your submitted User Content, including User Content submitted via social media channels directed at Splashin, will be made available to other Users of the Services (subject to the features of the Service which may restrict what Users can view and access your Content). You hereby grant to Splashin and its affiliates, contractors, and suppliers a nonexclusive, perpetual, irrevocable, world-wide, royalty-free, assignable and sublicensable (through multiple tiers), license to reproduce, copy, use, host, store, sublicense, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, you submitted User Content and your name, voice and likeness (to the extent they are part of the User Content), (i) in connection with the Services, as specified under Third Party Licenses and/or for the interoperation of any third party products, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of Splashin’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, and (iv) as permitted by Splashin’s Privacy Policy. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your submitted User Content, including, without limitation, to grant the foregoing rights to Splashin and its affiliates, contractors and suppliers.
10. Releases. You acknowledge and agree that (i) you are solely responsible and liable for your interactions with other Users of the Services, (ii) Splashin does not control the acts, omissions, policies or procedures of other Users of the Service. Without limiting the foregoing, you understand the risks associated with the access to and use of the Services and any User Content and other data, content and materials made available through the Services, and acknowledge that you are using the Services and such other data, content and materials at your own risk and that you are personally responsible for verifying their suitability for your needs through your own investigation. To the maximum extent permitted by law, Splashin is not liable for, and you hereby waive, release, relinquish and forever discharge Splashin, its employees, members, managers, governors, suppliers, agents, contractors, affiliates, representatives, successors and assigns (collectively, the Splashin Parties”), from any and all claims, counterclaims, demands, causes of action, suits, liabilities, injuries to person or property (including, but not limited to, death, incapacity and disability), damages, losses, costs and expenses, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, arising out of or related to (a) your access to and use of the Services, (b) access to and use of any User Content and other data, content and materials made available through the Services, (c) and your interactions with other Users of the Services. You agree to not sue Splashin and the other Splashin Parties, or assist any other person or entity in any suit against Splashin and the other Splashin Parties, with respect to any matters released in this Section. The terms of this release shall also apply to any of your relatives, next of kin, heirs, beneficiaries, employers, successors or assigns who assert or attempt to assert any claims on your or their behalf.
11. Prohibited Uses. In addition to uses otherwise prohibited by Splashin, these Terms and Conditions or applicable law, you shall not, and you shall not allow any third party to, do any of the following:
• Download, access, use or register for the Services if you are under eighteen (18) years old.
• Change or delete any copyright or proprietary notices from the Services.
• Use the Service other than as permitted by these Terms and Conditions and that you will not use the Service in a manner inconsistent with the original intent of its design.
• To impersonate or attempt to impersonate Splashin, a Splashin employee, another authorized User, or any other person or entity.
• Access or use the Services to send unsolicited commercial messages to any person, or to threaten, harm or harass another User’s Account, use and/or access of the Services, including, but not limited to, attempting to gain access to another User’s Account.
• Access or use the Services by artificial means or in a manner that, in Splashin’s sole discretion, would inflict an excessive load on Splashin’s or its suppliers’ hardware or software.
• Post, upload or transmit: (i) any data, content or materials meant to market or advertise services or products that are competitive with the Services, solicit any other Users of the Services for such purposes and/or use data, content or materials gathered from the Services for such purposes, (ii) any data, content or materials of any type that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret or any proprietary or other right of Splashin or a third party, (iii) any data, content or materials that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or otherwise violate the rights of Splashin or a third party, and/or (iv) any disabling code (defined as computer code designed to interfere with the normal operation of the Services or Splashin’s or a third party’s hardware or software) or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Services or Splashin’s or a third party’s hardware or software.
• Use the Services for any benchmarking, monitoring or testing availability or performance, or any other competitive use, including, but not limited to, creating services, products or software that are substantially similar to the Services.
• Decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization), modify or create a derivative work of the Services by any means whatsoever.
• Distribute, disclose or allow use of any portion of the Services or your Account in any format through any time sharing device, service bureau, network or by any other means, to or by any third party.
• Use or access any data, content or materials for any purpose or in any manner other than real-time viewing (which prohibits, for example, screenshots, downloading and storing) unless expressly permitted by the features of the Services.
• Use or access the Services or any data, content or materials provided through the Services in violation of international, federal, state or local law or other applicable rules or regulations (including, without limitation, any laws regarding the export of data or software to and from the US and other countries). If you access the Services from outside the United States, you do so at your own risk and responsibility for compliance with laws of your jurisdiction.
• Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm Splashin or Users of the Service or expose them to liability.
12. Ownership and Intellectual Property. Except for certain User Content as described herein, all material included on the Service, including (without limitation) the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. You acknowledge and agree that as between you and Splashin, Splashin is and shall remain the exclusive owner of the Services, Splashin’s data, information, and Content (expressly excluding User Content as otherwise described in these Terms and Conditions), and all patent, copyright, trade secret, trademark and other intellectual property rights therein. In addition, the compilation and presentation of the Content on the Service is subject to copyright owned exclusively by us. Content on the Service may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without our prior written consent. We reserve all rights not expressly granted in and to the Service and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Content obtained through the Service for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein. You shall not challenge or assist any third party to dispute or challenge Splashin’s or its licensors’ ownership of such rights or the validity or enforceability of such rights. Splashin expressly reserves all rights not expressly set forth in these Terms and Conditions.
If you find or suspect intellectual property infringement with respect to the Services or User Content, believe that the Services or any User Content otherwise violate these Terms and Conditions, or have questions, complaints or claims regarding the Services, please immediately notify Splashin using the contact information located below. Upon receiving such information, Splashin will investigate the matter, in its sole discretion.
13. Third Party Content and Products. The Service may contain links to third party content and other third-party websites that are not owned or controlled by Splashin. Links are provided to online Users solely as a convenience and our inclusion of such links does not imply any endorsement of the information by Splashin. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, features, services, information or other materials on or available from such sites or resources, or any websites that they may link to (collectively, “Third-Party Content”). We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Content.
Access to the Services may include hardware, software, and other proprietary materials from Splashin’s third party suppliers that are subject to license rights, terms and restrictions (collectively, “Third-Party Licenses”). In such event, your rights to the Services are expressly subordinate and subject to the Third-Party Licenses and you must comply with Third-Party Licenses. If Splashin’s rights provided by a third-party supplier are limited, suspended or terminated for any reason, your rights shall also be so limited, suspended or terminated. To the extent of any conflict between the terms of these Terms and Conditions and the terms of a Third-Party License, the terms of the Third Party-License shall control with respect to the applicable third-party product.
14. Warranties. You represent and warrant that (i) these Terms and Conditions constitute your legal, valid and binding obligation enforceable against you in accordance with their terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) you have all requisite authority to enter into these Terms and Conditions, (iii) your agreement to these Terms and Conditions and performance or compliance with the terms of these Terms and Conditions will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which you or your affiliates are bound or to which your properties are subject, (iv) you are the lawful owner of any submitted User Content and your Registration Data, or to the extent you are not the lawful owner, you have all rights necessary for you to provide, upload and make available in submitted User Content and your Registration Data and license it as specified herein, and (v) your submitted User Content and your Registration Data will not violate or in any way infringe on any patent, copyright, trade secret, trademark, intellectual property or other rights of a third party.
15. Termination. Access to the Services is provided at the discretion of Splashin. Splashin has the right at any time, with or without prior notice, to suspend or terminate your access to the Services or your Account, and to refuse any and all current or future use of all or any portion thereof, for any reason, including, but not limited to, if Splashin believes that you are in violation of any of the provisions of these Terms and Conditions, your Account is being used without your authorization, or the information you have provided is inaccurate, not current or incomplete. Splashin shall also have the right, but not the obligation, at any time to change or discontinue any aspect or feature of the Services and/or change or remove any of the User Content from the Services, in its sole discretion. In the event you desire to terminate your Account you may do so through the Service or by contacting Splashin as set forth below. Upon termination of your Account, all of the information associated with your Account may be retained or deleted without notice, consistent with applicable law. Splashin shall have no liability for such deletion.
16. Indemnification. To the fullest extent permitted by law, you shall indemnify, defend and hold and the other Splashin Parties harmless from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees, disbursements and court costs prior to trial, at trial and on appeal) arising out of or resulting from, or alleged to result from (i) your breach of these Terms and Conditions, (ii) your access to and use of the Services, and/or (iii) your Content and your Registration Data; provided, the foregoing provisions of this Section shall not apply to the extent such losses, costs and expenses arise out of the gross negligence or willful misconduct of Splashin.
17. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, SPLASHIN DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) WITH REGARD TO THE SERVICES, USER CONTENT OR ANY OTHER DATA, CONTENT AND MATERIALS CONTAINED IN OR PROVIDED THROUGH THE SERVICES. THE SERVICES AND USER CONTENT ARE PROVIDED
ON AN “AS IS” BASIS. IF YOU ARE DISSATISFIED WITH THE SERVICES, USER CONTENT, THESE TERMS AND CONDITIONS OR ANY PORTION OF THE FOREGOING, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. SPLASHIN DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS.
18. Liability. SUBJECT TO THE OTHER LIMITATIONS AND DISCLAIMERS IN THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPLASHIN OR ANY OTHER SPLASHIN PARTIES BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, THE SERVICES OR USER CONTENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES EXCEPT TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY YOU, NOT TO EXCEED ONE HUNDRED AND NO/100 DOLLARS ($100.00) OR THE FEES PAID FOR THE SERVICE OVER THE PAST 12 MONTHS, whichever is greater. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any of your claims arising in connection with these Terms and Conditions, the Services or User Content must be brought within one (1) year of the date that the event giving rise to such action occurred.
19. Dispute Resolution. MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL
WAIVER. In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us as described above and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION
AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN
INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.
Notwithstanding anything to the contrary in these Terms, and except as otherwise set forth in this paragraph, the agreement to arbitration may be amended by us only upon advance notice to you. If we make any amendment to this agreement to arbitration (other than renumbering the agreement to align with any other amendment to the Terms) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding or action against us prior to the effective date of the amendment. The amendment shall apply to all other Claims governed by this agreement to arbitration that have arisen or may arise between you and us. However, we may amend this agreement to arbitration and not provide you notice; in that case, the amendments will not apply to you and the agreement to arbitration contained in these Terms to which you agreed will continue to apply to you and us as if no amendments were made.
If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the App, the Services, and any other actions with us.
You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at team@splashin.app and including in the subject line “Rejection of Arbitration Provision.”
20. Force Majeure. Splashin shall not be responsible for delays or failures of performance resulting from acts beyond its reasonable control. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, third party service providers, lockouts, riots, acts of war, acts of terror, epidemics, government regulations, fire, communication line failures, power failures, earthquakes and other disasters.
21. Personal Information. Splashin may collect your personal and non-personal information when you download, register for, access and/or use the Services. You agree that Splashin may collect, process, transfer, use and disclose your information in accordance with Splashin’s Privacy Policy which is incorporated herein by reference and deemed a part hereof.
22. Assignment. You may not assign or transfer these Terms and Conditions, or any of your rights or obligations hereunder, without the prior written consent of Splashin, and any attempted assignment or transfer without Splashin’s prior written consent shall be null and void. Splashin may assign these Terms and Conditions to an affiliate or the surviving entity or its successor in the event of its merger or the sale of all or substantially all of its assets. All of the terms and provisions of these Terms and Conditions shall be binding upon and shall insure to the benefit of the parties hereto and their respective personal representatives, estates, heirs, successors and permitted assigns.
23. Governing Law. These Terms and Conditions shall be governed by, construed and enforced according to the laws of the State of Missouri, without regard to its conflict or choice of law principles. Any action arising out of or relating to these Terms and Conditions shall be brought only in the state or federal courts of Missouri, and all parties expressly consent to such courts’ jurisdiction and irrevocably waive any objection with respect to the same.
24. App Store. This Section only applies to the App. You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, including, without limitation, the Apple App Store or Google Play (each an “App Store”).
• These Terms and Conditions are only between you and Splashin, not an App Store. As between Splashin and an App Store, Splashin is solely responsible for the App and its content.
• Your license to the App set forth in Section 3 above is limited to use of the App on products that you own or control and as permitted by the applicable App Store Terms and Conditions or terms of service.
• To the extent that Splashin is responsible for any maintenance or support services with respect to the App under applicable law, you acknowledge that no App Store has any obligation whatsoever to furnish any such services.
• The App is provided on an “AS-IS” basis. To the extent that any product warranties are not effectively disclaimed by these Terms and Conditions, Splashin is solely responsible for any such product warranties. In the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Store, and, if the App was purchased, such App Store may refund the purchase price for the App to you. To the maximum extent permitted by applicable law,
no App Store will have any other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty shall be Splashin’s sole responsibility.
• Your claims are limited by these Terms and Conditions. To the extent you have any claims relating to the App, Splashin, not any App Store, is solely responsible for addressing such claims, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection, privacy, or similar legislation.
• Splashin shall not be obligated to indemnify, defend, or hold you harmless from any third-party claims relating to the App. To the extent that Splashin is responsible to indemnify you under applicable law in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Splashin, not any App Store, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• Each App Store, including its subsidiaries, are third party beneficiaries of these Terms and Use, and upon your acceptance of these Terms and Conditions, each App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third-party beneficiary.
25. Feedback. If you submit any ideas, concepts, feedback or related information concerning the Services to Splashin through the Services or by other means, you hereby grant, and/or warrant that the owner of such content or intellectual property has expressly granted to Splashin, a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, transferable, sublicensable (through multiple tiers) license to reproduce, copy, use, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, such content or intellectual property in any media or medium, or any form, format or forum now known or hereafter developed.
26. Contact Information. Except as otherwise provided, notices under this Agreement shall be in writing and shall be deemed given three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, or when received via electronic mail, in each case to the respective party as set forth below.
To: Splashin Attn: Legal Notices
Email: team@splashin.app
From you: As specified in your Account information.
27. Miscellaneous. Section headings are not to be considered part of these Terms and Conditions. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof. Except as otherwise set forth herein, if any provision of these Terms and Conditions is found void or unenforceable, this will not affect the validity of the balance of these Terms and Conditions, which shall remain valid and enforceable, and the invalid or unenforceable provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. Except as stated herein, nothing in these Terms and Conditions is intended to confer upon any person other than the parties hereto, and their respective personal representatives, estates, heirs, successors and permitted assigns, any rights or remedies under or by reason of these Terms
and Conditions. Any and all rights and obligations contained in these Terms and Conditions which by their nature and/or context are intended to survive termination of these Terms and Conditions shall so survive, including, but not limited to, perpetual license grants, indemnification, limitations of liability and disclaimers. No breach or right under these Terms and Conditions may be waived unless in writing signed by the waiving party.
28. Changes to Terms and Conditions. Splashin may modify these Terms and Conditions from time to time by posting an updated version of these Terms and Conditions and changing the “Date Last Modified” above. Such changes shall be effective immediately upon posting updated Terms and Conditions. If you continue to access or use the Services, you accept such modified terms. If you do not agree to such changes, do not continue to access, or use the Services.