Terms of Services
MkaSPLASH, LLC APP
This agreement (or “EULA”) is a legal agreement between the person, company or organization (“You”) that has licensed a software product (“Product”) and mkaSplash, LLC (“Licensor” or “Application Provider”). The Product is to be obtained only through Apple’s software distribution platform (“App Store”) and through Google’s software distribution platform (“Google Play Store”). The “App Store” and “Google Play Store” are referred to in this license as “Services”. By installing and/or using any Product provided by the Licensor, You are confirming your acceptance of this agreement and you are agreeing to become bound by the terms of this agreement.
This EULA shall apply only to a Product supplied by the Licensor herewith regardless of whether other software or platform is referred to or described herein.
The Products transacted through the Services are licensed, not sold, to You for use only under the terms of this license. The Application Provider reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in this license as the “Licensed Application.” The Licensed Application is to be used on devices that operate with Apple’s operating systems (“iOS” and “Mac OS”) and/or with Google’s operating system (“Android”) and the aforementioned devices are referenced in this license as “Devices”. The App Store Terms and Conditions and the Google Play Terms of Service are referenced in this license as “Usage Rules”.
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON LOCATED AT THE END OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, THE MOBILE APP WILL NOT BE INSTALLED ON YOUR MOBILE DEVICE. BY CLICKING THE “I ACCEPT” BUTTON OR USING THE MOBILE APP, YOU HEREBY WARRANT, REPRESENT, COVENANT AND CERTIFY THE FOLLOWING:
YOU possess the legal right and ability to enter into this Agreement and comply with its terms, including authority to enter into this Agreement on behalf of YOUR employer or other organization on whose behalf YOU are using the Mobile App, and YOUR acceptance of this Agreement on behalf of such employer or entity shall be binding on such employer or organization, if applicable;
YOU are of a lawful age in YOUR jurisdiction to enter into this Agreement and install and use the Mobile App;
YOU will only use the Mobile App for the purpose intended; YOU will properly follow all instructions and documentation provided by mkaSplash, LLC to YOU;
YOU will only install the Mobile App on mobile devices for which YOU are the authorized owner or on mobile devices for which YOU have been given express permission to install the Mobile App by such mobile device owners;
All information that YOU provide to mkaSplash, LLC is true and accurate, including, without limitation, YOUR identity, account information, information about any organization YOU are affiliated with, and any other related information;
YOU shall not misrepresent YOUR association with a charitable or political organization or otherwise use the Service in such a way as to defraud individuals;
YOU will not use the Mobile App in violation of any Federal, State or local law, rule, ordinance or governmental regulation, including those governing financial services, consumer protections, unfair competition, anti-discrimination, privacy or false advertising;
YOU agree at all times to comply with the Office of Foreign Assets Control (OFAC) policies and guidelines and YOU shall not enter into any transactions or use the Service in violation of OFAC policies or guidelines, including, without limitation, sending or receiving funds from or to persons on the blocked persons list or to or from sanctioned countries;and
YOU agree not to use the Service for transactions that involve or relate to:
· narcotics, steroids, certain controlled substances, drug paraphernalia or other products that present a risk to consumer safety;
· items that encourage, promote, facilitate or instruct others to engage in illegal activity;
· stolen goods including digital and virtual goods;
· certain sexually oriented materials or services;
· ammunition, firearms, or certain firearm parts or accessories;
· certain weapons or knives regulated under applicable law;
· supporting pyramid or Ponzi schemes;
· violating applicable laws or industry regulations regarding the sale of tobacco products or prescription drugs; or
· gambling, gaming, and/or any other activity with an entry fee and a prize, including casino games, sports betting, lottery tickets, and other similar activities.
1. MOBILE APP USE REQUIREMENTS.
1.1. Account. To use the Mobile App, YOU will be required to install the Mobile App on one or more mobile devices that YOU own and that meet the minimum specifications provided by mkaSplash, LLC. Additionally, YOU may be required to create an account (an “Account“) to access and utilize the Mobile App. To create an Account, YOU will be required to provide certain information, including YOUR name, email address, mailing address and phone number. YOU will also need to create a screen name. Maintaining Account security is very important. YOU are entirely responsible for maintaining the confidentiality of the Account username and password. YOU agree to monitor YOUR Account and notify mkaSplash, LLC immediately if YOU believe that an Account username and/or password have been compromised or if YOU suspect unauthorized payments or charges are occurring through YOUR Account.
1.2. Updates. mkaSplash may require that YOU download and install updates to the Mobile App from time to time. YOU acknowledge and agree that mkaSplash, LLC may update the Mobile App with or without notifying YOU and add or remove features or functions to the Mobile App at any time in its sole discretion. YOU acknowledge and agree that mkaSplash, LLC has no obligation to make the Mobile App available to YOU, make any subsequent versions of the Mobile App available to YOU or to continue to support the Mobile App in any way. YOU acknowledge that YOUR access to the Mobile App may not be continuous, features may change during YOUR use of the Mobile App, and mkaSplash, LLC may terminate YOUR access to the Mobile App or stop offering the Mobile App at any time pursuant to the TOU. Further, YOU acknowledge that YOUR use of a Mobile Payment Reader may not be supported by the Mobile App and/or Service or work correctly with the Mobile App and/or Service and YOU are using such Mobile App Reader at YOUR sole risk.
2. LICENSE AND RESTRICTIONS.
2.1. License. Subject to the terms and conditions of this Agreement, mkaSplash, LLC hereby grants YOU a limited, non-exclusive, revocable license to (i) install the Mobile App on one or more mobile devices which are owned by YOU, are under YOUR control and which meet mkaSplash, LLC’s minimum specifications, (ii) view, review and utilize the Mobile App and any related information provided to YOU by mkaSplash, LLC and (iii) transmit payment information through the Service by utilizing the Mobile App.
2.3. License Restrictions. Notwithstanding anything to the contrary, YOU may not: (i) remove any proprietary notices from the Service or any copy of the Mobile App; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Mobile App or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Mobile App or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of mkaSplash, LLC; or (iv) make any false, misleading or deceptive statement or representation regarding mkaSplash, LLC and/or the Mobile App or Service.
2.4. No Data Mining or Harmful Code. YOU agree that YOU will not (i) obtain or attempt to obtain any information from the Service, including without limitation email or payment information of other Account holders or other Mobile App data; (ii) intercept, examine or otherwise observe any proprietary communications protocol used by the Mobile App or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (iii) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Mobile App, the Site or the Service.
2.5. Misuse of the Mobile App and/or Service. YOU may not connect to or use the Mobile App and/or Service in any way not expressly permitted by this Agreement or the TOU. Without limiting the foregoing, YOU agree that YOU will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Service or otherwise attempt to disrupt the Service or any other person’s use of the Mobile App and/or Service; or (ii) attempt to gain unauthorized access to the Service, Accounts registered to other users or the computer systems or networks connected to the Service. Furthermore, YOU may not use the Mobile App and/or Service in association with, or to develop, generate, transmit or store, information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way that obstructs or otherwise interferes with the normal performance of another person’s use of the Service; (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; (f) violates any applicable law, regulation or ordinance; (g) makes any false, misleading or deceptive statement or representation regarding mkaSplash, LLC, the Mobile App and/or Service; or (h) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
2.6 Location Services. This Mobile App may use location data sent from YOUR device. YOU can turn off the location functionality at any time by turning off the location services setting for the Mobile App on YOUR device. If YOU choose to use the location function, YOU consent to mkaSplash, LLC and our licensees’ transmission, collection, maintenance, processing and use of YOUR location data and queries to improve and provide location-based products and services. YOU may withdraw this consent by turning off the location services setting on YOUR device.
3. OWNERSHIP. mkaSplash, LLC retains all right, title and interest in and to the original and any copies of the Mobile App, Service, Service Data and related information, improvements, enhancements or derivatives thereto and ownership of all intellectual property and proprietary rights recognized anywhere in the world pertaining thereto, in whole or in part, shall be, vest with, and remain the exclusive property of mkaSplash, LLC. The Mobile App, Service, Service Data and related written materials are protected by the copyright and patent laws of the United States and international copyright and patent treaties. YOU shall not be an owner of any copies of, or have any interest in the Mobile App, Service or Service Data that may be provided, documentation, or other information.
4. INDEMNIFICATION. YOU agree to defend, indemnify and hold harmless mkaSplash, LLC and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors (collectively, the “Indemnified Parties“) at YOUR expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by the Indemnified Parties arising out of or relating to (a) YOUR violation or breach of any term of this Agreement or any policy or guidelines referenced herein; (b) YOUR use or misuse of the Mobile App, Service or Service Data; or (c) any violation of data protection or privacy laws through YOUR use or misuse of the Mobile App, Service, YOUR Account or the Service Data.
5. CONFIDENTIALITY. YOU shall maintain in strict confidence, and not use or disclose to others during or after the term of this Agreement any non-public information, proprietary information, trade secrets, or technical data relating to the Mobile App disclosed by mkaSplash, LLC or otherwise obtained by YOU as a result of, or in connection with, your use of the Mobile App (“Confidential Information“); provided, however, these obligations shall not apply to Confidential Information which: (a) is publicly available prior to disclosure or becomes publicly available thereafter not as a result of an act or omission by YOU; (b) YOU rightfully obtain from a third party without confidentiality obligations; (c) is in YOUR possession without confidentiality obligations prior to disclosure; or (d) is approved in writing by mkaSplash, LLC for release.
6. ASSIGNMENT OF FEEDBACK. mkaSplash, LLC shall exclusively own and have title to all feedback, reports and test results provided by YOU and any modifications or derivatives of the Mobile App. YOU agree to assign, and do hereby irrevocably assign, to mkaSplash, LLC all right, title and interest in and to the foregoing, including assignment to mkaSplash, LLC of all ownership interest in any feedback, reporting, results, or any other related diagnostic or customer service information associated with YOUR use of the Mobile App and related written materials. The foregoing shall not apply to YOUR proprietary information, if any, disclosed to mkaSplash, LLC.
7. DISCLAIMER OF WARRANTY. THE MOBILE APP, SERVICE AND SERVICE DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. MkaSPLASH, LLC MAKES NO WARRANTY OR CONDITION AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE MOBILE APP, SERVICE OR SERVICE DATA. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE MOBILE APP, SERVICE AND/OR SERVICE DATA IS AT YOUR SOLE RISK. MkaSPLASH, LLC DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE MOBILE APP, SERVICE AND/OR SERVICE DATA AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE MOBILE APP, SERVICE OR SERVICE DATA WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT MOBILE APP, SERVICE OR SERVICE DATA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, mkaSPLASH, LLC DOES NOT REPRESENT AND WARRANT THAT YOU WILL RECEIVE PAYMENT OR GOODS AND SERVICES FROM THIRD PARTIES WHEN CONDUCTING TRANSACTIONS THROUGH MOBILE APP AND/OR SERVICE, THAT YOU WILL RECEIVE REFUNDS FROM PAYEES, THAT CHARGEBACKS WILL NOT OCCUR, OR THAT ANY MOBILE PAYMENT READER WILL WORK OR FUNCTION CORRECTLY AND/OR ACCURATELY WITH THE MOBILE APP AND/OR SERVICE.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL mkaSPLASH, LLC ITS AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES“) HAVE ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, LOST PROFITS OR SALES, OR LOST OR CORRUPTED DATA ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE MOBILE APP, SERVICE AND/OR SERVICE DATA, EVEN IF mkaSPLASH, LLC AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE PRODUCTS, TECHNOLOGY, SERVICES OR RIGHTS. IN ADDITION, IN NO CASE SHALL THE LIABILITY OF mkaSPLASH, LLC OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT OF FEES THAT WE RECEIVE FROM PAYMENTS MADE TO YOU THROUGH THE SERVICE DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
9. TERM AND TERMINATION. This Agreement will take effect on the date YOU click “I Accept” and download the Mobile App and will continue in effect unless terminated earlier pursuant to this Section. This Agreement may be terminated by YOU at any time by ceasing all use of the Mobile App and uninstalling the Mobile App. mkaSplash, LLC may terminate this Agreement at any time, with or without cause, by providing notice to YOU and/or preventing YOUR access to the Service through the Mobile App. Upon termination of this Agreement for any reason, or upon mkaSplash, LLC’s request to YOU, YOU must immediately remove the Mobile App and Service Data from YOUR mobile devices (or other mobile devices upon which YOU have installed the Mobile App) and dispose of all originals and copies of the Mobile App and Service Data in YOUR possession. Notwithstanding termination or expiration of this Agreement, YOUR representations, warranties, covenants and certification throughout this Agreement shall survive. All licenses granted hereunder shall terminate upon the termination or expiration of this Agreement. Termination shall be in addition to any rights and remedies available to either party at law or equity or under this Agreement.
10. BINDING ARBITRATION.
10.1. Arbitration Procedures. YOU and mkaSplash, LLC agree that, except as provided in Section 10.4 below, all disputes, controversies and claims related to this Agreement (each a “Claim“), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules“) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 10 and the JAMS Rules, the terms in this Section 10 will control and prevail. Except as otherwise set forth in Section 10.4, YOU may seek any remedies available to YOU under federal, state or local laws in an arbitration action. As part of the arbitration, both YOU and We will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) YOU and mkaSplash, LLC may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND mkaSPLASH, LLC WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
10.2. Location. The arbitration will take place in YOUR place of residence if YOU so notify mkaSplash, LLC in YOUR notice of arbitration or within ten (10) days following receipt of mkaSplash, LLC’s arbitration notice. In the absence of a notice to conduct the arbitration in YOUR hometown area, the arbitration will be conducted in Des Moines, Iowa, unless the parties agree to video, phone and/or internet connection appearances.
10.3. Limitations. YOU and mkaSplash, LLC agree that any arbitration shall be limited to the Claim between mkaSplash, LLC and YOU individually.
YOU AND mkaSPLASH, LLC AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
10.4. Exceptions to Arbitration. YOU and mkaSplash, LLC agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of YOUR or mkaSplash, LLC’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii)any Claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
11. MISCELLANEOUS. This Agreement may be amended only by a writing executed by both parties unless modified from time to time by mkaSplash, LLC and posted on the Site. The next time YOU use the Mobile App after such an update, YOU may be prompted to agree to or decline an update of this Agreement. YOU must agree to all revisions if YOU choose to continue using the Mobile App. By using the Mobile App, YOU agree to the then-current version of this Agreement as posted on the Site. If at any point YOU do not agree to any portion of the then-current version of this Agreement, YOU must immediately stop using the Mobile App and uninstall the Mobile App. This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the laws of the State of New York, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 10 above (and claims proceeding in any small claims court), all disputes arising out of or related to YOUR use of the Mobile App, Service and/or Service Data shall be subject to the exclusive jurisdiction of the state and federal courts located within Des Moines, Iowa and YOU agree to submit to the personal jurisdiction and venue of such courts. This Agreement constitutes the entire, final and integrated agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous understandings and communications, whether oral or written, between the parties relating to the subject matter hereof. mkaSplash, LLC reserves any rights or licenses other than those specifically granted herein. This Agreement shall not be assigned (by operation of law or otherwise) or transferred in any manner by YOU without the prior written consent of mkaSplash, LLC and any attempted assignment without mkaSplash, LLC’s consent shall be null and void. YOU will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls“). Without limiting the generality of the foregoing, YOU will not, and YOU will require YOUR representatives not to, export, direct or transfer the Mobile App, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. If YOU are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Mobile App is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Mobile App are governed by the terms of this Agreement. YOU acknowledge that a breach of this Agreement would cause irreparable injury to mkaSplash, LLC for which monetary damages are not an adequate remedy. Accordingly, We shall be entitled to seek injunctive relief and other equitable remedies in the event of such breach.
12. Objectionable Content Policy. Content may not be submitted to Splash, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE MOBILE APP, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.