1. Terms Of Use
1.1 These Terms Of Use set out the terms upon which you may access and use the Splash Pro app (“Splash Pro”). 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 Splash Pro 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 Splash Pro if you do not agree to them.
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 Splash Pro and in all of the material (including all text, graphics, logos, sound recordings, musical works and other copyright works) made available in Splash Pro (“Content”).
2.2 Splash Pro is an AI-powered song generator which lets users create instantaneous, original songs. Users can submit a text-based song prompt (“Song Prompt”) which will be input into Open AI’s GPT-4 algorithm (or another third party AI algorithm selected by us) to compose lyrics, and our proprietary AI vocal model to generate matching audio, which can be further refined by the user. Users may also submit their own lyrics (“User-Submitted Lyrics”). The final output is a sound recording of a song, which may or may not include vocals (“Recording”).
2.3 Users of Splash Pro may elect to have audio vocals created for their Recordings in one of the following ways:
(a) If you wish to use the “Voice Transfer” functionality in Splash Pro, you can provide samples of your own voice, or another person’s voice, or a non-vocal sound (for example, a “toothbrushing” sound), and Splash Pro will create vocals for your Recording in a voice that is designed to sound like that voice or that sound (a “Custom Voice”). You can provide the voice or sound samples by uploading recordings to Splash Pro accordance with the instructions on Splash Pro (“Uploaded Recordings”);
(b) If you choose not to use the “Voice Transfer” functionality in Splash Pro, then Splash Pro will create the vocals for the Recordings using a synthetic voice generated by Splash Pro, which can be selected by you from a list of available synthetic voices.
2.4 If you choose to use the “Voice Transfer” functionality:
(a) you must not supply Uploaded Recordings of the voice of a person other than you unless that person has granted you permission to record their voice and supply it to us for use in accordance with these Terms Of Use;
(b) you must not supply Uploaded Recordings in which the person whose voice is on the Uploaded Recordings is mimicking or impersonating the voice of any other person unless that other person has granted you permission to do so, and has granted permission for the relevant Uploaded Recordings to be supplied to us for use in accordance with these Terms Of Use; and
(c) you must not supply Uploaded Recordings unless you own the copyright in those recordings, or have secured all necessary permissions and licences from the owner of the copyright in them for them to be supplied to us for use in accordance with these Terms Of Use.
2.5 We may impose a limit on the number of Custom Voices that you may use within Splash Pro. This limit may vary depending on whether you are subscribed to the Free, Starter, Max or Enterprise tier. The limits will be published to users on the Splash Pro platform, and may change from time to time.
2.6 Splash Pro includes functionality which allows you to do the following with Recordings created by Splash Pro:
(a) download Recordings in .mp3 format;
(b) copy a link (url to clipboard) to a Recording;
(d) share a Recording via social media.
2.7 We grant you a licence to use Recordings for any commercial or non-commercial purpose, on a royalty-free basis, provided that:
(a) your use of Splash Pro and the Recordings does not transfer to you ownership of any IP Rights in Splash Pro, the Recordings or the Content;
(b) we may, by notice to you at any time, limit your use of the Recordings or require you to cease using them (and delete any copies of them) if we form the view that your use of the Recordings would infringe the rights of any third party, including Open AI; and
(c) we may terminate your license to use the Recordings if you breach these Terms Of Use.
2.8 You grant us a royalty free, irrevocable licence to reproduce, communicate and otherwise use and exploit any Song Prompts or User-Submitted Lyrics submitted by you, to the extent required for us to operate Splash Pro and to provide the functionality referred to in clause 2.3.
2.9 If you provide us with User-Submitted Lyrics, they must be lyrics in which you own the copyright, or in respect of which you have all permissions and licences which are necessary for them to be submitted to us and used in connection with the operation of Splash Pro and the provision of the functionality referred to in clause 2.3, and which are necessary for all usages by you of the Recordings and the User-Submitted Lyrics. You warrant that any User-Submitted Lyrics provided by you will not be defamatory, obscene or illegal and that they will not infringe the copyright or other rights of any third party.
2.10 You agree that we may store Recordings, and Song Prompts and User-Submitted Lyrics provided by you, indefinitely (but may delete them from our storage at any time in our discretion) and may use them for our internal purposes in connection with the development and improvement of Splash Pro and our other products and services. You grant us a licence of all rights which are necessary for us to store and use any Song Prompts and User-Submitted Lyrics provided by you in accordance with this clause, and warrant that such storage and use will not infringe the infringe the copyright or other rights of any third party.
3. Prohibited Activity / Objectionable Content
3.1 You must not:
(a) use Splash Pro 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 Splash Pro in connection with any criminal or tortious activity or the infringement of intellectual property rights;
(c) sub-license, sell, lend or lease any part of Splash Pro;
(d) reverse engineer, decompile, disassemble, or attempt to obtain the source code of, Splash Pro;
(e) delete, circumvent or alter any legal notices, rights management information or technological protection measures within Splash Pro;
(f) engage in any malicious activity in connection with Splash Pro, 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 Splash Pro;
(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 Splash Pro by others, including but not limited to interfering with the computer systems which support Splash Pro, overloading a service, engaging in a denial-of-service attack, or attempting to disable a host;
(j) use Splash Pro or its output to create, train or modify any product or service which is similar to or competitive with Splash Pro, and/or which is an artificial intelligence product or service;
(k) engage in any activity, or take any action, which may interfere with, or detrimentally affect, the ability of other users of Splash Pro, to use and/or enjoy the functionality or features of Splash Pro;
(l) use Splash Pro as part of conducting any business which we deem to be directly or indirectly competitive with our business; or
(m) permit, encourage or assist any other person to do any of the above.
(“Prohibited Activity”).
3.2 You must not submit any Song Prompts or Uploaded Recordings which:
(a) contain content which is defamatory, harmful, libellous, contemptuous, obscene, pornographic, hateful, indecent or racially, culturally or ethnically or otherwise objectionable;
(b) violate or infringe the rights (including rights of privacy, publicity, copyrights, trade mark rights and contract rights) of any other person or party or infringe any law;
(c) promote, incite or instruct in criminal activity or violence, or in conduct that may give rise to civil liability;
(d) advocate the doing of a terrorist act;
(e) contain gratuitous, exploitative or offensive descriptions of violence, or which provide explicit or graphic descriptions of sexual acts or fetishes;
(f) contain or promote information that you know is false, misleading or deceptive;
(g) refer to any illegal services or the sale of any items which are prohibited or restricted by any law; or
(h) constitute or promote copyright infringement;
(“Objectionable Content”).
3.3 We may suspend or terminate your use of Splash Pro if:
(a) we reasonably believe that you have engaged in Prohibited Activity or the use of 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 Splash Pro.
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 Splash Pro, or any suspected breach of these Terms Of Use.
4. Tiers
4.1 Splash Pro has four different account tiers: Free, Starter, Max and Enterprise.
4.2 The Free tier is available free of charge.
4.3 The Starter and Max tiers contain additional features which are not available in the Free tier. Details of these are available within Splash Pro.
4.4 If you wish to access the Starter or Max tiers you must sign up to a monthly or annual subscription plan (a “Plan”).
4.4 The monthly and annual subscription fees for the Plans we offer will be published within Splash Pro. If you sign up to a Plan, you will be automatically debited with the applicable monthly or annual fee. Your first billing cycle will commence on the date you join the relevant Plan and the billing cycles will continue on a rolling monthly or annual basis, as applicable, after that. For example, if you joined a monthly Plan 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 a monthly Plan 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.
4.5 You may change between the Free, Starter and Max tiers at any time. You may also change between a monthly Plan and an annual Plan at any time.
4.6 If you change from the Free tier to a Plan, you will be charged at the subscription rate for your new Plan from the date you make the change.
4.7 If you change from a monthly Plan for one paid tier (Starter or Max) to a monthly Plan for another paid tier (Starter or Max), then the following will apply in respect of the monthly billing cycle during which you change Plans:
(a) your account will receive a pro-rata credit, calculated at the cost of your former Plan, for the remainder of that billing cycle; and
(b) you will be charged on a pro-rata basis, at the rate which applies to your new Plan, in respect of the remainder of that billing cycle.
4.8 If you change from a monthly Plan to an annual Plan:
(a) your account will receive a pro-rata credit, calculated at the cost of your former Plan, in respect of the remainder of the then-current monthly billing cycle of your former Plan; and
(b) the first annual billing cycle of your new Plan will start on the date you change Plans, and you will be charged for that cycle at the annual rate which applies to your new Plan.
4.9 If you change from an annual Plan to a monthly Plan:
(a) your account will receive a pro-rata credit, calculated at the cost of your former Plan, in respect of the remainder of the then-current annual billing cycle of your former Plan; and
(b) the first monthly billing cycle of your new Plan will start on the date you change Plans, and you will be charged for that cycle at the monthly rate which applies to your new Plan.
4.10 If you change from a Plan to the Free tier, your account will receive a pro-rata credit, calculated at the cost of your former Plan, in respect of the remainder of the then-current billing cycle of your former Plan.
4.11 Any credits added to your account under this clause 4 will be applied to future amounts charged to your account under these Terms of Use, including in respect of any new Plan you may have joined.
4.12 If you wish to cancel your monthly or annual Plan, you must give us notice at least 24 hours before the commencement of the next monthly or annual 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 Plan 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 Plan, your Plan will continue uninterrupted.
4.13 We may in our discretion discontinue the Free tier, Starter tier or the Max tier at any time. If we do this and you have a monthly or annual Plan for either the Starter or Max tier, we will notify you and we will inform you of the date your Plan will terminate. After that, you will no longer be charged monthly or annual fees, and you will no longer be entitled to use the tier to which you were previously subscribed. If the date we discontinue a tier, and your Plan terminates, doesn’t fall at the end of your then-current billing cycle, your account will receive a pro-rata credit, calculated at the cost of your former Plan, for the remainder of that billing cycle. If your account receives any credits under this clause 4.13, you may request us to refund you those particular credits but only if your account has a positive credit balance.
4.14 We may, in our discretion, change the functionality and features available as part of the Free tier, the Starter tier or the Max tier. If we change the features or functionality for the Starter or Max tiers and you are a monthly or annual subscriber to the Starter or Max tiers, we will notify you of the relevant changes and the date the changes to your Plan will occur. If you do not cancel your Plan at least 24 hours prior to the date the changes will occur, you will be deemed to have agreed to the changes. If you give us such notice, your Plan will terminate on the date that the changes occur, and you will not be charged any further fees from this date. If the date of the relevant changes, and the date your Plan terminates, doesn’t fall at the end of your then-current billing cycle, you will not be entitled to receive any pro-rata credit, or any other refund. You may, if you wish re-subscribe to the Plan at any time, and if you do so at least 24 hours before the date of the relevant changes to your Plan, your Plan will continue uninterrupted.
4.15 We may, in our discretion, change the cost of the monthly or annual subscription fee for the Starter or Max Tiers. If we change the fee amount for the Starter or Max tiers and you are a monthly or annual subscriber to the Starter or Max tiers, we will notify you of the change (which will not take effect until at least the start of your next monthly or annual billing cycle) 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.
4.16 If you are a monthly or annual subscriber to the Starter or Max tiers and you cancel your subscription or your Plan otherwise terminates, you will be automatically placed on the Free tier from the date that your Plan is cancelled or otherwise terminated.
4.17 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.
4.18 In order to access the Enterprise Tier, you must contact us, and your access to the Enterprise Tier will be subject to a separate agreement being entered into between you and us.
5. Accounts
5.1 To use the Starter or Max Tiers 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.
6. Third Party Services
6.1 Splash Pro 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.
7. Indemnity
7.1 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 Splash Pro or the Recordings; or
(c) any violation by you of any law or the rights of any third party, or any law.
8. Limitation of Liability
8.1 Nothing in these Terms Of Use excludes, restricts, or modifies any rights that you have under the Competition and Consumer Act 2010 (Cth).
8.2 To the maximum extent permitted by law (but subject to clause 8.1):
(a) we make no warranties of any kind, express or implied, about Splash Pro, including but not limited to any warranties:
(i) about the accuracy and reliability of any material contained in Splash Pro;
(ii) that Splash Pro will meet your requirements or achieve any particular result;
(ii) that your access to or use of Splash Pro 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 Splash Pro; 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.
8.3 To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall we be liable for any direct or indirect loss, damage or expense, or any 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 Splash Pro, or as a result of the inaccessibility of Splash Pro and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up-to-date.
8.4 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:
(a) the resupply of Splash Pro to you; or
(b) the payment of the cost of having Splash Pro supplied to you again.
9. Entire agreement
9.1 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 Splash Pro and the other matters dealt with in these Terms Of Use.
10. No Assignment
10.1 You may not assign or transfer any rights under these Terms Of Use to any third party without our prior written consent.
11. Severability
11.1 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 these Terms Of Use will be unaffected.
12. Interpretation
12.1 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.
13. Jurisdiction and governing law
13.1 Your use of Splash Pro 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.
14. Amendments
14.1 These Terms of Use may be amended by us from time to time. We will notify you of any such amendments. Your continued use of Splash Pro following the date such amendments take effect will be deemed to be acceptance of any amended Terms of Use. If you are subscribed to a Plan, you may terminate your Plan by giving us at least 24 hour’s notice before the date such amended Terms of Use take effect. If you provide us with such notice, your Plan will terminate on the date the amended Terms of Use take effect. If this date doesn’t fall at the end of your then-current billing cycle, your account will receive a pro-rata credit, calculated at the cost of your former Plan, for the remainder of that billing cycle. If your account receives any credits under this clause 14.1, you may request us to refund you those particular credits but only if your account has a positive credit balance. You may, if you wish, re-subscribe to the Plan at any time, and be bound by the amended Terms of Use, and if you do so at least 24 hours before the date the amended Terms of Use take effect, your Plan will continue uninterrupted.
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