Splash Unreal – Terms Of Use

1.        Terms Of Use‍‍

1.1        These Terms Of Use set out the terms upon which you may access and use the Splash Unreal game (the “Game”) on the Steam platform. 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 Game you agree to the terms of these Terms Of Use and our Privacy Policy, as well as Steam’s Code Of Conduct (https://store.steampowered.com/online_conduct) and Subscriber Agreement, (https://store.steampowered.com/subscriber_agreement) and any other Steam policies or rules that may apply to you. You should review these Terms Of Use and our Privacy Policy carefully and immediately cease using the Game 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 Game following the date such amended terms take effect will be deemed to be acceptance of any amended terms.

1.4        The Game is still undergoing development and is currently being offered in BETA mode. You acknowledge and accept that in this mode:

(a) the Game’s software is subject to change;

(b) bugs and crashes are expected; and

(c) user data may be lost with no warning.

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 Game and in all of the material (including all text, graphics, logos, sound recordings, musical works (whether incorporated into sound packs or otherwise) and other copyright works) made available in the Game (Content).

2.2        Your use of the Game and the Content does not transfer to you ownership of any IP Rights in the Game or the Content.

2.3     To the extent that the Game allows you to reproduce, distribute or otherwise exploit material (including musical works, lyrics and sound recordings) not provided as part of the Game, you must only use the Game 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 Game in relation to that material will not infringe the copyright or other rights of any third party.

2.4       The Game allows you to create music which is live-streamed to other users of the Game in a virtual nightclub, concert, festival or other virtual setting. The musical works (and any associated lyrics) you create (and potentially perform) while using the Game are referred to below as “Your Works” and you are the owner of Your Works. Notwithstanding that you own Your Works you agree that you will not at any time make any use of Your Works other than for your personal, non-commercial purposes. If Your Works incorporate Content, you obtain no IP Rights in that Content but we grant you the right to embody the Content in Your Works and to exploit Your Works in accordance with these Terms of Use.

2.5        Subject to any restrictions imposed by Roblox, you may record your own performances in the Game using screen recording or other technology (each a “Recording”). You will be the owner of Recordings, however we remain the owner of all Content that is embodied in a Recording (including musical works and sound recordings). We grant you a revocable, worldwide, royalty-free licence to use the Content solely as embodied in a Recording for your personal, non-commercial purposes and provided that you are not permitted to make any edits, adaptations, or changes to, or create derivative works from, any Content.

Further, you agree that notwithstanding your ownership of the Recording, you will not at any time make any use of the Recording other than for your personal, non-commercial purposes. You grant us an irrevocable, royalty-free, worldwide, perpetual, transferable, assignable license to communicate and otherwise exploit each Recording for the purposes of promoting the Game and us. For the avoidance of doubt, nothing in these Terms of Use permits you to make recordings of the performances of other users.

2.6        You grant us a royalty free, irrevocable licence to live-stream Your Works to other users of the Game, throughout the world, including live-streaming them in conjunction with visual images, and to reproduce and otherwise use Your Works as reasonably necessary to facilitate that live- streaming. You also grant us a royalty free, irrevocable license to use and exploit Your Works to the extent they are embodied in any Recordings as set out above.

2.7        You warrant that you hold all rights in the Recordings and Your Works which are necessary for you to grant the licences in clauses 2.5 and 2.6, that by granting those licences you are not breaching any other agreement to which you are  a party, and that the live-streaming of Your Works via the Game, and any other use of the Recordings or Your Works, will not infringe the copyright or other rights of any third party, or any law.

2.8       If you or any other person who has contributed to the creation of any of Your Works is a member of a performing rights organisation (“PRO”), you must ensure that before using the Game, you have obtained the written consent of the PRO to grant the licence in clause 2.6, and have obtained an assignment or licence of any rights held by the PRO which it is necessary for you to hold in order for you to grant that licence.

2.9       If for any reason it is not possible for you to comply with the requirements of clauses 2.5 or 2.6 or (if a PRO holds any relevant rights) clause 2.8, you must not use the Game.

3.        Third Party Platforms

3.1       The Game is made available as part of the Steam platform. In using the Game you must at all times comply with the Steam Code Of Conduct and Subscriber Agreement , and any other Steam policies or rules that may apply to you.

3.2       We may send data from the Game and your use of it to the Microsoft Playfab platform for the purpose of operating and developing the Game and our business. This data may include:

(a) analytics (which may be used for product improvements, tracking and Game analysis);

(b) user data (including device ID, operating system, system specifications, country and install date;

(c) session data (including session start time, session length);

(d) gameplay data (including gameplay, economy, design, progression, result and event tracking);

(e) monetization data (including in-game purchases data);

(f) software quality tracking (including crash, bug and diagnostic data);

(g) account data (including Steam user ID and gameplay data);

(h) player interaction data, including chat logs (which may be used for support and moderation purposes.

4.        Prohibited Activity‍‍

4.1        You must not:

(a) use the Game 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 Game in connection with any criminal or tortious activity or the infringement of intellectual property rights;

(c) sub-license, sell, lend or lease the Game;

(d) reverse engineer, decompile, disassemble, or attempt to obtain the source code of, the Game;

(e) delete, circumvent or alter any legal notices, rights management information or technological protection measures within the Game;

(f) engage in any malicious activity in connection with the Game, 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 Game;

(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 Game by others, including but not limited to interfering with the computer systems which support the Game, overloading a service, engaging in a denial- of-service attack, or attempting to disable a host;

(j) use the Game or its output to create, train or modify any product or service which is similar to or competitive with the Game, and/or which is an artificial intelligence product or service; 

(k) use any feature of the Game, including but not limited to any “text chat” functionality or other functionality which allows you to communicate with other users, to:

(i) distribute material or make comments which are unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to us;

(ii) distribute unsolicited or unauthorised advertising, promotional materials, junk mail or spam; or

(l) permit, encourage or assist any other person to do any of the above, (“Prohibited Activity”).

4.1        We may suspend or terminate your use of the Game if:

(a) we reasonably believe that you have engaged in Prohibited Activity, 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 Game.

4.3       You must co-operate with us in relation to any reasonable investigation by us of technical problems or security problems in connection with the Game, or any suspected breach of These Terms Of Use.

5.        Third Party Services‍‍

5.1        The Game 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.

6.        Fees‍‍

6.1        The Game is available free of charge. You may be able to access additional features or functionality through in-app purchases. These Terms Of Use will apply to any such additional features or functionality.

7.        Support‍‍

7.1        The Game is provided on an “as is” and “as available” basis and we do not provide any support in respect of the Game.

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:

(1.a) any breach or alleged breach by you of any of your warranties or obligations in these Terms Of Use;

(1.b) your use of the Game; and

(1.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):

we make no warranties of any kind, express or implied, about the Game, including but not limited to any warranties:

(i) about the accuracy and reliability of any material contained in the Game;

(ii) that the Game will meet your requirements or achieve any particular result; or

(iii) that your access to or use of the Game 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 Game; 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.

9.5       The Game includes the Unreal® Engine code and other code, materials, and information (the “Epic Materials”) from Epic Games, Inc. (“Epic”).  All Epic Materials are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind.  Subject to clause 9.1, Popgun Labs, Epic, and Epic’s affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing.

Without limiting the generality of the foregoing, subject to clause 9.1, Popgun Labs, Epic, and Epic’s affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Game, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer has approved or will approve this the Game, or will not revoke approval of this the Game for any or no reason.  Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code in the United States or in any other comparable statute is expressly disclaimed by Popgun Labs and Epic.  Popgun Labs, Epic, and Epic’s affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials.  This paragraph will apply to the maximum extent permitted by applicable law.

9.6       To the maximum extent permitted by law, including the Australian Consumer Law, neither Popgun Labs, Epic, Epic’s licensors, nor its or their affiliates, nor any of Popgun Labs’ or Epic’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with these Terms Of Use including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. 

In no event will Popgun Labs, Epic, Epic’s licensors, nor its or their affiliates, nor any of Popgun Labs’ or Epic’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with these Terms Of Use or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Popgun Labs’, Epic’s, or Epic’s affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Popgun Labs, Epic or Epic’s affiliates have been advised of the possibility of such damages.  These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.

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 Game 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:

(1.a)        a reference to natural person includes a corporation, partnership, government body or any other legal entity;

(1.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

(1.c)        “including”  and similar expressions are not words of limitation.

14.        Jurisdiction and governing law‍‍

14.1        Your use of the Game 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.