Terms and Conditions
The network of Web Sites (collectively, the “Member Splash Web Sites”) operated by Member Splash, Inc. or its affiliates or subsidiaries, is comprised of various Web sites and Web pages. The Member Splash Web Sites are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Member Splash Web Sites constitutes your agreement to all such terms, conditions, and notices. Your use of a particular Member Splash web site included within the Member Splash Web Sites network may also be subject to additional terms outlined elsewhere on that web site (the “Additional Terms”). Additionally, the Member Splash Web Sites may themselves contain additional terms that govern particular features or offers. In the event that any of the terms, conditions, and notices contained herein conflict with the Additional Terms or other terms and guidelines contained within any particular Member Splash web site, then these terms shall control.
PLEASE READ THE FOLLOWING TERMS OF USE AND DISCLAIMERS CAREFULLY BEFORE USING THIS WEBSITE (this “Site”). By accessing or using this Site, you agree to these terms of use, conditions and all applicable laws. If you do not agree to these terms you may not use this Site. Member Splash reserves the right to revise these terms and conditions at any time and users are deemed to be apprised of and bound by any changes to these terms and conditions by virtue of using the Site. You are responsible for regularly reviewing these terms and conditions.
- Limitations on Use. Your use of the products and/or services (collectively the “Product”) are subject to all applicable local, state, provincial, federal and international laws and regulations. You agree the data accessed through the Product will be distributed consistent with any confidentiality or other agreements by which you are bound. You agree to use the Product and any associated data in accordance with such operational, privacy and other specifications, rules and policies as established by Member Splash from time to time. Member Splash reserves the right to refuse or terminate service for any activity viewed as abuse or misuse of the system. Furthermore, unauthorized automated activation of the system or excessive messaging is deemed as abuse and may result in termination of service at any time. If you are a natural person, by use of the Site or Product, you represent that you are at least 18 years of age.
- DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, Member Splash PROVIDES THE PRODUCT, INCLUDING THE DATA GENERATED BY THE PRODUCT, ON AN “AS IS, AS AVAILABLE AND WITH ALL FAULTS” BASIS, AND MAKES NO EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS REGARDING THE PRODUCT, SUCH DATA, OR THE USE OR PERFORMANCE OF ANY OF THE FOREGOING. Member Splash DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT AND ANY AND ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, EXCEPT AS PROVIDED HEREIN. Member Splash WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF BUSINESS OR DATA, INTERRUPTION OF BUSINESS OR THE PRODUCT, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES. Member Splash WILL NOT BE LIABLE FOR ANY DELAY IN ACCESSING AND/OR INABILITY TO ACCESS THE PRODUCT OR ANY DATA, WHETHER DUE TO AN ACT OF GOD, ACTION BY GOVERNMENTAL ENTITY, STRIKE, NETWORK DIFFICULTY, ELECTRONIC MALFUNCTION, OR ANY RELIABILITY OR EFFECTIVENESS RELATED TO THE PRODUCT. Member Splash MAKES NO WARRANTY OR REPRESENTATION THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR THAT THE DATA OBTAINED FROM THE PRODUCT WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. Member Splash’s LIABILITY TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT (EVEN IF A FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL BE LIMITED TO THE TOTAL FEES PAID BY YOU FOR THE PARTICULAR PRODUCT INVOLVED. No agent or representative has the authority to create any warranty regarding the Site on behalf of Member Splash. Member Splash reserves the right to change or discontinue at any time any aspect, feature, or account of the Site. Because some states do not permit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
- Indemnity. You agree to indemnify and hold harmless Member Splash, its subsidiaries, affiliates, officers, employees, suppliers, and agents from any claim, demand, loss or expense, including reasonable attorneys’ fees, resulting or arising from: your breach of this Agreement; any action taken or permitted by you which disrupts, degrades or damages the Product or related data; your infringement of any intellectual property right of Member Splash or any other person or entity; any activity related to your account (including any negligent or wrongful conduct) by you or any other person accessing the Product; any User Materials; or your actual or alleged breach of any federal, state, local or foreign law, or regulation.
Delivery of all messages is made on a “best effort” bases. All such content is regarded as informational and not life saving in nature. Deliveries of such messages might be subject to delay or failure. You agree to indemnify and hold harmless all mobile phone providers servicing Member Splash.
- Links to Third Party Sites. You acknowledge the Site may be linked to other websites, which are not under the control of or maintained by Member Splash. Member Splash is not responsible for the content of those sites. Member Splash provides such links only as a convenience, and the inclusion of a link to any site does not imply an endorsement of the site by Member Splash. To the extent you add links from the User Materials or otherwise to other websites, you are solely responsible for such links and Member Splash shall have no responsibility whatsoever for such links.
- Export Control. Member Splash controls and operates the Site from its headquarters in the United States and makes no representation that the Site is appropriate or available for use in other locations. You are responsible for compliance with applicable local laws including but not limited to the export and import regulations of other countries. You acknowledge and agree that the data and any other materials made available from the Product may be subject to U.S. and foreign Export Administration Laws and Regulations.
- General. If any portion of this Agreement is found to be unlawful, void or unenforceable for any reason whatsoever, the unenforceable provision may be severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. This Agreement is the complete agreement concerning the subject matter hereof, and supersedes all prior agreements and representations between Member Splash and you. This Agreement may be modified to reflect changes to the platform or applicables laws, rules or regulations. You agree to pay all reasonable attorneys’ fees and other costs incurred by Member Splash to enforce any of the terms and conditions of this Agreement. This Agreement shall be governed and construed in accordance with the laws of the State of California, U.S.A. applicable to agreements made and to be performed in the without reference to its choice-of-law provisions. You agree that any legal action or proceeding between you and Member Splash for any purpose concerning this Agreement or the parties’ obligations hereunder will be brought exclusively in the courts of Orange County, California or the United States District Court for the Southern District of California.
- Software Available on Site. Any software that is made available to download from the Site is the copyrighted work of Member Splash and/or its suppliers. Your use of the software is governed by the terms of the End User License Agreement, if any, that accompanies or is included with the software. You may not install or use any software without first agreeing to the terms of such End User License Agreement. For any software not accompanied by an End User License Agreement, Member Splash hereby grants to you a personal, non-transferable, non-sub licensable, limited license to use the software for viewing and other purposes within the scope of use of such software anticipated by Member Splash in accordance with these terms and conditions, and for no other purpose, which license is subject to these Terms of Use including termination by Member Splash at any time. Any such software is provided to you subject to the warranty and liability exclusions set forth in these terms and conditions.
- Copyright. Except as otherwise expressly provided in these terms and conditions, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, modify, rewrite, create derivative works from, transfer, or sell any material contained on the Site without the prior consent of the copyright owner. None of the material contained on the Site may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means (electronic, mechanical, photo reproduction, recordation or otherwise), resold or redistributed without the prior written consent of Member Splash. No copies may be distributed to others, whether or not for a charge or other consideration, without prior written permission from Member Splash or the copyright owner of the copied material.
- Copyright Infringement. Member Splash does not monitor user-submitted materials for copyright infringement. If you believe that any material on the Site infringes your copyright, you may seek to have the material removed by sending Member Splash notice that includes all of the following information:
- your full name, address and telephone number
- your e-mail address
- identification of the copyrighted work(s) that you believe is being infringed
- identification of the infringing material and information sufficient for Member Splash to locate the material
- your statement of good faith belief that (a) the material infringes your copyrights, (b) the information provided in the notice is accurate and (c) under penalty of perjury, you are authorized to act for the copyright owner
- your physical or electronic signature
Direct such notices to support@membersplash.com.
Upon receipt of notice complying with the above requirements, Member Splash will act to remove any infringing materials and, if applicable, send notice to the user that posted such materials on the Site. If Member Splash removes materials posted by you as a user due to alleged copyright infringement, you may seek to have the materials reinstated by notifying Member Splash’s designated agent in writing and including the following information:
- your full name, address and telephone number
- your e-mail address
- identification of the material that has been removed or to which access has been disabled, including its location before it was removed or disabled
- your statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material
- your statement consenting to the jurisdiction of the Federal District Court for the District in which your address is located, or, if you reside outside of the United States, for the Eastern District of Virginia (where Member Splash may be found), and that you will accept service of process from the person who provided notice of copyright infringement or from such person’s agent
- your physical or electronic signature
Upon receipt of a notice meeting the above requirements, Member Splash will send a copy of the notice to the copyright owner who initially claimed copyright infringement. Within 10 to 14 days following receipt of the notice, Member Splash will replace or enable access to the removed material unless Member Splash receives notice from the copyright owner who submitted the first notification that it has filed an action seeking a court order to restrain the user that posted the materials from engaging in infringing activity. Please note that parties who misrepresent that materials are infringing or were removed by mistake or misidentification are subject to substantial civil liability to Member Splash and/or the copyright owner or Site user.
PRIVACY To understand our privacy practices, please review our Privacy Policy that also governs your visit to our Site and use of the Product.
LEGAL NOTICES Copyright Member Splash, INC. All Rights Reserved.
Privacy Policy
This Privacy Policy describes Member Splash’s practices regarding the collection, use and disclosure of the information we collect from and about you when you use Member Splash’s web-based and mobile applications (the “Service”). We take our obligations regarding your privacy seriously and have made every effort to draft this Privacy Policy in a manner that is clear and easy for you to understand. By accessing or using the Service, you agree to this Privacy Policy, our Terms of Service, and our Acceptable Use Policy.
OUR COLLECTION AND USE OF INFORMATION
Information You Provide to Us
We collect personal information, such as your name and email address, when you register for an account on the Service. You may also provide us with optional information such as a photograph. Your username, email address and any optional profile information that you elect to associate with your account is referred to herein as your “Profile Information.”
If you make an online payment via Member Splash your credit card or ACH information are handled by a third party payment gateway. We do not ever collect or store your payment information.
We will not use, share or sell your email address for any purpose. Only the club to which you belong has the right to send email communications and each club is required to provide an unsubscribe option (though we highly recommend you not unsubscribe as you may miss important club notices).
Your Content
Your use of the Service will involve you uploading or inputting various content into the Service; including but not limited to: phone numbers, street addresses, and photos.
Member Splash may view your Content only as necessary (i) to maintain, provide and improve the Service; (ii) to resolve a support request from you; (iii) if we have a good faith belief, or have received a complaint alleging, that such Content is in violation of our Acceptable Use Guidelines; (iv) as reasonably necessary to allow Member Splash to comply with or avoid the violation of applicable law or regulation; or (v) to comply with a valid legal subpoena or request. We may also analyze the Content in aggregate and on an anonymized basis, in order to better understand the manner in which our Service is being used.
INFORMATION WE COLLECT AUTOMATICALLY
Log Files
When you use the Service, our servers automatically record certain information in server logs. These server logs may include information such as your web request, Internet Protocol (“IP”) address, browser type and settings, referring / exit pages and URLs, number of clicks and how you interact with links on the Service, domain names, landing pages, pages viewed, mobile carrier, date and time stamp information and other such information. Log files help us to monitor, analyze, improve and maintain the Service and to diagnose and fix any Service-related issues.
Our Cookie Policy
Member Splash client sites by default use cookies only to authenticate user accounts and link administrative user accounts to any support questions or tickets they might create in our third party support platform, Intercom.com. On this site we employ Google Analytics to measure page views and overall traffic to help optimize our content and presentation. Individual clients may opt to employ similar traffic analysis tools on their Member Splash provided sites which may or may not involve the use of cookies to track visitor activity.
How We Share Your Information
Any information stored in the system by a club or its members is solely for the use of that club and those members. There are a limited number of instances in which this data might be shared:
With Trusted Service Providers and Business Partners
We may use third parties to help host our Service, send out email updates, perform analyses related to the operation of our Service, or process payments. We may also store personal information in locations outside the direct control of Member Splash (for instance, on servers or databases co-located with hosting providers).
These service providers may have access to your information for the limited purpose of providing the service we have contracted with them to provide. They are required to have a privacy policy and security standards in place that is at least as protective of your information as is this Privacy Policy.
With Law Enforcement or In Order to Protect Our Rights
We may disclose your information (including your personally identifiable information) in response to a lawful request by public authorities, including to meet national security or law enforcement requirements. We may also disclose your information to our legal counsel, governmental authorities or law enforcement if we believe that it is reasonably necessary to do so in order to comply with a law or regulation; to protect the safety of any person; to address fraud, security or technical issues; or to protect Member Splash’s rights or property.
In an Aggregate and Non-Personally Identifiable Manner
We may disclose aggregate non-personally identifiable information about the overall use of our Service publicly or with interested third parties to help them understand, or to help us improve, the Service. For example, we may share the aggregate number of emails being sent via our Service with third-party email providers in order to ensure the appropriate allocation of resources without disclosing the content or recipients of those messages.
In Connection With a Sale or Change of Control
If the ownership of all or substantially all of our business changes, we may transfer your information to the new owner so that the Service can continue to operate. In such case, your information would remain subject to the promises and commitments contained in this Privacy Policy until such time as this Privacy Policy is updated or amended by the acquiring party upon notice to you.
How We Protect Your Information
The security of your information is important to us. When you enter any information as part of our service, we encrypt the transmission of that information using industry-standard encryption.
Member Splash uses commercially reasonable and industry-standard physical, managerial, and technical safeguards to preserve the integrity and security of your information. For example, we continuously and regularly back up your data to help prevent data loss and aid in data recovery. We also guard against common web attack vectors, host data in secure SAS 70 audited data centers, and implement firewalls and access restrictions on our servers to secure our network and better protect your information.
Risks Inherent in Sharing Information
Although we allow you control what information is included in your Profile and take reasonable steps to maintain the security of the information associated with your account, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your Content and we are not responsible for third party circumvention of any privacy settings or security measures on the Service.
Member Splash Blogs and Forums
The information you provide in comments to our blogs, forums or other publicly accessible content is public and may be read, collected, and used by others who view those blogs. Your posts may remain even after you cancel your Service account.
Links to Other Web Sites
We are not responsible for the practices employed by websites linked to from within the Service, nor the information or content contained therein. For example, many clubs use a third party platform to manage their swim and dive teams. Please remember that when you use a link to go from the Service to another website, our Privacy Policy is no longer in effect and your activities on that third party website are subject to such third party website’s own rules and policies.
Changes to Our Privacy Policy
If we change our Privacy Policy, we will post those changes on this page to keep you aware of what information we collect, how we use it and under what circumstances we may disclose it. Changes to this Privacy Policy are effective when they are posted on this page.
CONTACT US
For questions about these or any Member Splash terms or policies, contact our Support Center.
Acceptable Use Policy
This agreement (“Agreement”) governs the use of the software as a service platform (“Platform”) provided by Member Splash Inc. (“Company”) that provides member management tools. By accessing or using the Platform, you (“Customer”) agree to be bound by the terms and conditions of this Agreement.
ACCEPTABLE USE OF THE SERVICE
Confidential Information
Customer acknowledges and agrees that the Platform is not intended to be used for uploading or storing any confidential information, including but not limited to social security numbers, drivers license numbers, scans of drivers licences, passport numbers, credit card numbers, bank account numbers, and other sensitive personal or financial information (“Confidential Information”).
Prohibited Actions
Customer agrees not to upload or store any Confidential Information (as defined above) on the Platform. Company reserves the right to remove any Confidential Information from the Platform without notice. Customer agrees to indemnify, defend and hold Company and its affiliates, officers, directors, employees, agents and licensors harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising from or related to Customer’s breach of this section.
Disruption of the Service
You may not:
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- access, tamper with, or use non-public areas of the Service, the Platform’s computer systems, or the technical delivery systems of the Platform’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- access or search the Service by any means other than the Platform’s publicly supported interfaces (for example, “scraping”);
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time);
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.
Misuse of the Service
You may not utilize the Service to carry out, promote or support:
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- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
- the publishing or posting other people’s private or personally identifiable information, such as street address, phone number or email address, without their express authorization and permission;
- the sending of unsolicited communications, promotions advertisements, or spam;
- the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
- promotion or advertisement of products or services other than your own without appropriate authorization.
Content Standards Within the Service
You may not post any Content on the Service that:
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- violates of any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited Children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
- contains viruses, bots, worms, or similar harmful materials; or
- contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Data Security
Company takes data security seriously and implements reasonable measures to protect the information stored on the Platform. However, Customer acknowledges and agrees that no security measures are perfect or impenetrable, and that the Platform is not intended to be used for storing Confidential Information. Customer is solely responsible for maintaining the confidentiality of its account login credentials and for ensuring that its use of the Platform is in compliance with applicable laws, regulations, and industry standards.
Violations of this Agreement
In addition to any other remedies that may be available to us, Member Splash reserves the right to immediately suspend or terminate your account or your access to the Platform upon notice and without liability for Member Splash should you fail to abide by this Agreement. If you are a user of the Service under your employer or organization’s account, Member Splash reserves the right to notify your employer or organization of any violations of this Agreement.
Modifications
Member Splash may amend or modify this Agreement from time to time in its sole and reasonable discretion. We will post any such changes on our website. If you object to any such change(s), your sole recourse shall be to cease using the Platorm. Continued use of the Platform following notice of any such changes shall constitute your acknowledgment and acceptance of such changes.
Limitation of Liability
Company shall not be liable for any indirect, special, incidental, consequential, or punitive damages arising out of or relating to Customer’s use or inability to use the Platform, even if Company has been advised of the possibility of such damages. In no event shall Company’s total liability to Customer exceed the amount paid by Customer to Company for use of the Platform during the twelve (12) months immediately preceding the event giving rise to the liability.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to any choice of law or conflict of law provisions. Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of Orange County, California, and Customer hereby consents to the jurisdiction of such courts.
For questions about these or any Member Splash terms or policies, contact our Support Center.
Subscriber Agreement
This Subscriber Agreement (the “Subscriber Agreement”) is between Member Splash Inc., a California corporation, and the organization agreeing to these terms (“Customer”). This Subscriber Agreement governs Customer’s access to Member Splash’s online member management service (the “Service”) and its associated applications and websites. By using the Service as a paid subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that they have the power and authority required to bind such organization to this Subscriber Agreement.
- The Service and Associated Software. Customer and users of the Service under Customer’s account (the “End Users”) may access and use the Services in accordance with this Subscriber Agreement and Member Splash’s Acceptable Use Policy, a current copy of which can be found here: Acceptable Use Policy. Member Splash may update or modify the Services from time to time. If, in Member Splash’s reasonable judgment, any such modification to the Service materially reduces the Service’s functionality, Member Splash will inform Customer via the email address associated with Customer’s account no less than twenty (20) days prior to such change. We may provide certain downloadable client software applications (the “Software”) for use in connection with the Service. This Software is updated automatically and, if such Software is designed for use on a mobile device, then a compatible mobile device is required for use. The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between Member Splash and Customer, Member Splash retains all right, title, and interest in the Software. Member Splash will use industry standard technical and organizational security measures in connection with the storage, processing and transfer of Customer Data that are designed to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. For purposes hereof, the term “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. Member Splash will use reasonable efforts, consistent with standard industry practices, to ensure that the Service and Software do not contain any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or Software.
- Customer Obligations.
- Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement. Member Splash shall not be held liable for any actions on the part of Customer’s Administrator(s).
- End User Conduct; Compliance. Customer is responsible for use of the Service by its End Users and for their compliance with Member Splash’s Acceptable Use Policy. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the content posted by the End Users on the Service; and (ii) to allow Member Splash to provide the Administrator with access to such End User content. Customer will promptly notify Member Splash if it becomes aware of any unauthorized access to Customer’s account or the Service.
- Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii) use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
- Suspension. Member Splash may request that Customer suspend the account of any End User who: (i) violates this Subscriber Agreement or Member Splash’s Acceptable Use Policy; or (ii) is using the Service in a manner that Member Splash reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Member Splash. If Customer fails to promptly suspend or terminate such End User’s account, Member Splash reserves the right to do so.
- Customer’s Use of Third Party Services. Member Splash does not warrant or support any third party service (e.g., a service that utilizes the Member Splash API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
- Intellectual Property Rights.
- Limited License to Use Customer Content. Customer hereby grants to Member Splash a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display the Customer Data for the limited purpose of (i) providing the Service and associated customer support to Customer; (ii) displaying the Customer Data to the End Users; and (iii) analyzing and improving the Service.
- Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Member Splash any rights or interest in or to the Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Member Splash Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
- Use of Customer Suggestions. Member Splash may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of Member Splash. Member Splash may also share and publish aggregate, anonymized data about the use of our Service by our customers.
- Member Splash Customer List. Member Splash may include Customer’s name in a list of Member Splash’s Customers online and in print and electronic marketing materials.
- Fees and Payment. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Member Splash to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and Member Splash may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has cancelled the Service prior to its renewal date. Member Splash may revise fee rates for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior to Customer’s Service renewal date. Customer is responsible for providing complete and accurate billing information to Member Splash. Member Splash may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Member Splash’s net income) and Member Splash will charge tax when required to do so by law. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are clearly marked as such on the face of the Purchase Order, any terms and conditions on a Customer purchase order that conflict with this Subscriber Agreement will not apply and are null and void.
- Term and Termination. This Subscriber Agreement will remain in effect until Customer terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 4(b) and (c), 6-9, and 11.
- Confidentiality.
- Confidentiality. During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Data.
- Obligations. Except as otherwise expressly permitted under this Services Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Member Splash may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Member Splash’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Customer may disclose Member Splash’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
- Exclusions. The obligations set forth in Section 7(b) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
- Indemnification.
- By Customer. Customer hereby agrees to indemnify, defend and hold harmless Member Splash, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Member Splash Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against Member Splash or the Member Splash Affiliates regarding: (i) use of or access to the Service by Customer or its End Users in violation of this Subscriber Agreement or our Acceptable Use Policy; or (ii) any data or Customer Data transmitted or received through Customer’s account.
- By Member Splash. Member Splash hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or Member Splash’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Member Splash have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Member Splash; (ii) use of any third party app developed using Member Splash’s API; or (iii) any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY Member Splash OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- Infringement Claims. If the Service becomes, or in Member Splash’s reasonable judgment is likely to become, the subject of a claim of infringement, then Member Splash may: (i) obtain the right, at Member Splash’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If Member Splash, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Member Splash may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
- Process. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL MEMBER SPLASH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL MEMBER SPLASH BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO MEMBER SPLASH HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- Hosting of the Service; Export Restrictions. The Service is controlled and operated from facilities in the United States. Member Splash makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Member Splash may transfer, store and process Customer Data in locations other than Customer’s country. The export and re-export of Content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.
- Miscellaneous.
- Modifications. Member Splash may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) business days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Member Splash’s obligations unless affirmatively agreed to by Customer in advance. If, in Member Splash’s sole and reasonable discretion, the modifications being proposed are material, Member Splash will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Member Splash’s obligations hereunder, Customer agrees to be bound by such modifications.
- Governing Law; Dispute Resolution. This Subscriber Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Either party may bring suit in the federal or state courts located in Orange County, California solely for injunctive relief to stop unauthorized use or abuse of the Service or infringement of intellectual property rights and both Member Splash and Customer agree to personal jurisdiction there. All disputes will be resolved on an individual basis and customer may not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidations with other arbitrators are not allowed under this Subscriber Agreement.
- Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
- Force Majeure. Except for payment obligations, neither Member Splash nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
- Assignment. Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
- Entire Agreement. This Subscriber Agreement, together with any Customer purchase order or order form associated herewith (as limited by Section 6), constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
For questions about these or any Member Splash terms or policies, contact our Support Center.