1. Terms Of Use
1.1 These Terms Of Use set out the terms upon which you may access and use the Splash music creation app for mobile devices (the “App”). These Terms Of Use constitute a binding agreement between you and Popgun Labs Pty Ltd ABN 19 616 888 674 (“Popgun Labs”, “we”, “us”, “our”).
1.2 By accessing and/or using the App you agree to the terms of these Terms Of Use and our Privacy Policy. You should review these Terms Of Use and our Privacy Policy carefully and immediately cease using the App if you do not agree to them.
1.3 These Terms Of Use may be amended by us from time to time. We will use reasonable efforts to ensure that any changes to these Terms Of Use are made available to you not less than 24 hours prior to taking effect. Your continued use of the App following the date such amended terms take effect will be deemed to be acceptance of any amended terms.
2. Intellectual property rights
2.1 We own or license from third parties all rights, title and interest including copyright, designs, patents, trademarks and other intellectual property rights (“IP Rights”) in the App and in all of the material (including all text, graphics, logos, sound recordings, musical works and other copyright works) made available in the App (Content).
2.2 You may use the sound recordings you create using the App for any commercial or non-commercial purpose, on a royalty-free basis, however your use of the App and the Content does not transfer to you ownership of any IP Rights in the App or the Content.
2.3 To the extent that the App allows you to reproduce, distribute or otherwise exploit material (including musical works, lyrics and sound recordings) not provided as part of the App, you must only use the App to reproduce, distribute or exploit material in which you own and control the copyright, or in respect of which you have all necessary permissions and licences for your use of it. You warrant that any such material will not be defamatory, obscene or illegal and that the use of the App in relation to that material will not infringe the copyright or other rights of any third party.
3. Prohibited Activity / Objectionable Content
3.1 You must not:
(a) use the App in a manner inconsistent with any applicable laws, statutes, and regulations, or inconsistent with the licence terms and conditions which apply to any third party software;
(b) use the App in connection with any criminal or tortious activity or the infringement of intellectual property rights;
(c) sub-license, sell, lend or lease the App;
(d) reverse engineer, decompile, disassemble, or attempt to obtain the source code of, the App;
(e) delete, circumvent or alter any legal notices, rights management information or technological protection measures within the App;
(f) engage in any malicious activity in connection with the App, or any activity which may overload or harm our servers or other infrastructure;
(g) engage in data harvesting or any similar activity in connection with the App;
(h) engage in any activity that involves the use of viruses, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, or otherwise permit the unauthorised use of or access to a computer or a computer network;
(i) interfere with the use of the App by others, including but not limited to interfering with the computer systems which support the App, overloading a service, engaging in a denial-of-service attack, or attempting to disable a host;
(j) use the App or its output to create, train or modify any product or service which is similar to or competitive with the App, and/or which is an artificial intelligence product or service; or
(k) permit, encourage or assist any other person to do any of the above.
(“Prohibited Activity”).
3.2 You must not use the app to publish material which:
(a) is unlawful, criminal, defamatory, harmful, libellous, contemptuous, obscene, pornographic, hateful, indecent or racially, culturally or ethnically or otherwise objectionable;
(b) violates or infringes the rights (including rights of privacy, publicity, copyrights, trade mark rights and contract rights) of any other person or party or infringes any law;
(c) promotes, incites or instructs in criminal activity or violence, or in conduct that may give rise to civil liability;
(d) advocates the doing of a terrorist act;
(e) contains gratuitous, exploitative or offensive descriptions of violence, or which provides explicit or graphic descriptions of sexual acts or fetishes;
(f) contains or promotes information that you know is false, misleading or deceptive;
(g) is for the purpose of advertising any illegal services or the sale of any items which are prohibited or restricted by any law; or
(h) constitutes or promotes copyright infringement;
(“Objectionable Content”).
3.3 We may suspend or terminate your use of the App if:
(a) we reasonably believe that you have engaged in Prohibited Activity or Objectionable Content, or have breached these Terms Of Use;
(b) you do not co-operate with any reasonable investigation by us of any suspected breach of these Terms Of Use; or
(c) we are required by a regulatory body, or by law, to suspend or terminate use of the App.
3.4 You must co-operate with us in relation to any reasonable investigation by us of technical problems or security problems in connection with the App, or any suspected breach of These Terms Of Use.
4. Third Party Services
4.1 The App may contain links or references to internet sites operated by third parties. These third party sites are not under our control and we are not responsible for the content of these sites. We make no representations or warranties and accept no responsibility for the accuracy, completeness, content or use of the information accessible from these sites. When you access such third party sites you do so at your own risk.
5. Fees
5.1 The App has two different account tiers: Free and Premium.
5.2 The Free tier is available free of charge, and contains advertising content.
5.3 The Premium tier does not contain advertising content. It contains additional sound packs and features which are not available in the Free tier. Details of these are available within the App.
5.4 If you choose to subscribe to the Premium tier, you must pay a subscription fee. You may choose to pay either:
(a) a recurring monthly fee of US$14.99, in advance (“Monthly Fee”); or
(b) a recurring yearly fee of US$49.99, in advance (“Yearly Fee”).
5.5 If you choose to pay the Monthly Fee, then at the start of each monthly billing cycle you will be automatically debited with this monthly fee. Your first billing cycle will commence on the date you join the Premium tier and the billing cycles will continue on a rolling monthly basis after that. For example, if you joined on 2 February then you will be debited the fee on the 2nd of each month. If in any particular month, the day number on which you joined does not exist, you will be debited on the last day that month (for example, if you joined on 31 January, then you will be debited on 28 February (or 29 February in a leap year), then 31 March, 30 April, and so on.
5.6 We offer a seven day free trial for users who are interested in subscribing to the Premium tier on a monthly subscription. In order to take advantage of the seven day free trial, you must create an account, including providing billing information. You will be entitled to cancel the free trial at any time within the first seven days (including the day you activated it). If you do not do so, you will automatically be subscribed to a monthly subscription and you will be debited with the first monthly fee on the day immediately following those initial seven days.
5.7 If you choose to pay the Yearly Fee, then at the start of each yearly billing cycle you will be automatically debited with this yearly fee. Your first billing cycle will commence on the date you join the Premium tier and the billing cycles will continue on a rolling yearly basis after that. For example, if you joined on 2 February then you will be debited the fee on the 2nd of February in each year.
5.8 If you wish to cancel your subscription to the Premium tier, you must give us notice at least 24 hours before the commencement of the next monthly or yearly billing cycle. If you give us such notice, your plan will terminate at the end of the then-current billing cycle and you will not be charged any further fees. You may, if you wish re-subscribe to the Premium tier at any time, and if you do so at least 24 hours before the end of the billing cycle during which you gave us notice of cancellation of your subscription, your subscription will continue uninterrupted.
5.9 We may in our discretion discontinue the Free tier or the Premium tier at any time. If we do this in respect of the Premium tier, and you have subscribed to that tier, we will notify you and we will inform you of the date your subscription will terminate (which will be at the end of a monthly billing cycle if you are on a monthly subscription, or the end of a yearly billing cycle, if you are on a yearly subscription). After that, you will no longer be charged monthly or yearly fees, and you will no longer be entitled to use the Premium tier.
5.10 We may in our discretion change the functionality and features available as part of the Free tier or the Premium tier, or change the amount of the monthly or yearly subscription fee for the Premium tier. If we change the features, functionality or fee amount for the Premium tier and you are a subscriber to the Premium tier, we will notify you of the change (which will not take effect until at least the start of your next monthly billing cycle if you are on a monthly subscription, or the start of your next yearly billing cycle if you are on a yearly subscription) and you may, if you wish, cancel your subscription. If you do not cancel it at least 24 hours prior to the commencement of the next billing cycle, you will be deemed to have agreed to the change.
5.11 If you are a subscriber to the Premium tier and you cancel your subscription, you will be automatically placed on the Free tier.
5.12 All payments will be processed by our third party payment services provider, Stripe. Payments may be made by credit card or any other payment type which Stripe may from time to time accept on our behalf.
5.13 For the purpose of this clause 5, time periods will be calculated based on the time and date in Brisbane, Australia.
6. Accounts
6.1 To subscribe to the Premium Tier you must register an account. When registering an account, you agree to:
(a) provide true, accurate, current, and complete information;
(b) maintain and update this information to keep it true, accurate, current, and complete;
(c) protect and prevent unauthorized access to your account;
(d) not transfer or share your account with any third party; and
(e) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. You are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
7. Support
7.1 The App is provided on an “as is” and “as available” basis and we do not provide any support in respect of the App.
8. Indemnity
8.1 You indemnify us, our related bodies corporate, subsidiaries, licensees and/or assignees, and their respective officers, agents, partners and employees in respect of any claims, loss, damage or costs (including legal costs on a full indemnity basis) arising from or in connection with:
(a) any breach or alleged breach by you of any of your warranties or obligations in these Terms Of Use;
(b) your use of the App; or
(c) any violation by you of any law or the rights of any third party, or any law.
9. Limitation of Liability
9.1 Nothing in these Terms Of Use excludes, restricts, or modifies any rights that you have under the Competition and Consumer Act 2010 (Cth).
9.2 To the maximum extent permitted by law (but subject to clause 9.1):
(a) we make no warranties of any kind, express or implied, about the App, including but not limited to any warranties:
(i) about the accuracy and reliability of any material contained in the App;
(ii) that the App will meet your requirements or achieve any particular result;
(ii) that your access to or use of the App will be free from errors, defects, bugs or viruses, uninterrupted, or reparable if damaged or impaired;
b) we are not liable to you or any other person in respect of any interference with or damage to your computer system or any other device which occurs in connection with your use of the App; and
(c) we are not responsible for any technical problems or malfunction of any telephone network or lines, online systems, servers, providers, hardware, software, due to technical problems or traffic congestion on the internet.
9.3 To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall we be liable for any direct and indirect loss, damage or expense, loss of profits, loss of revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, loss of business, or any other loss not arising naturally from the relevant breach – irrespective of the manner in which it occurs – which may be suffered due to a your use of the App, or as a result of the inaccessibility of the App and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up-to-date.
9.4 To the extent that we have any liability to you, our total aggregate liability to you in connection with any breach of These Terms Of Use by us will be limited at our sole discretion to:
10. Entire agreement
10.1 These Terms Of Use, and the terms of any other notices or instructions given to you under these Terms Of Use supersede all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and us relating to the use of the App and the other matters dealt with in these Terms Of Use.
11. No Assignment
11.1 You may not assign or transfer any rights under these Terms Of Use to any third party without our prior written consent.
12. Severability
12.1 If any part or provision of these Terms Of Use is invalid, unenforceable, or in conflict with any law, that part or provision is excised from these Terms Of Use and the remainder of the Licence will be unaffected.
13. Interpretation
13.1 In these Terms Of Use:
(a) a reference to natural person includes a corporation, partnership, government body or any other legal entity;
(b) words and expressions not otherwise defined and which are defined in the Copyright Act 1968 (Cth) will have the same meaning given to them in that Act; and
(c) “including” and similar expressions are not words of limitation.
14. Jurisdiction and governing law
14.1 Your use of the App and These Terms Of Use are governed by the law of Queensland, Australia and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Queensland.
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