The Splashup Merchant Terms (the “Terms”) cover your (“Customer”) rights and obligations relating to your access and use of Splashup Technology Inc.’s (“Splashup”) Platform (as defined below).
The Terms constitute the entire agreement of the parties regarding the Platform, and include any exhibits attached to the Terms, and all of the other terms and conditions incorporated into the Terms by reference. The Terms supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to the Platform and all past dealings or industry customs.
1. Platform Services.1 General. Splashup provides a proprietary web-based solution and software components designed to (a) enable merchants to list their products (the “Products”) on other merchant websites or online storefronts and (b) provide various analytics tools and business metrics with respect to merchant products and businesses (collectively, the "Platform"). Subject to the terms and conditions of the Terms, Splashup hereby grants to Customer a limited, nonexclusive, non-transferable license to internally access and use the features of the Platform as described herein and, if applicable, on the Order Form.
1.2 Order Forms. Customer may obtain access to additional Splashup products and services by entering into separate order forms (each, an “Order Form”) with Splashup. In the event of a conflict between the Terms and the terms of an Order Form, the Order Form will govern.
1.3 Customer Materials. Customer will timely provide or make available all data, content, and other materials (including all relevant information about Products and Customer Data (as defined below)) to Splashup as reasonably necessary for, or otherwise in connection with, Splashup's provision of the Services (the "Customer Materials"). “Customer Data” means any and all data about Customer’s consumers, including personal data and real-time information about consumer transactions, that Customer provides to or otherwise makes available to Splashup or that a Customer consumer provides to or otherwise makes available to Splashup in connection with the Services. To the extent permitted under applicable law, Customer hereby grants to Splashup a (i) worldwide, royalty-free, fully paid-up, non-exclusive license and right to use, access, reproduce, create derivative works of, distribute, perform, display, process, publish, analyze, and otherwise exploit (including combining, incorporating, or integrating with Splashup or third parties’ materials, information, and data) the Customer Materials (other than the Customer Data) to provide, maintain, and improve the Services and create and fully exploit the Splashup Data (as defined below) and (ii) a worldwide, royalty-free, fully paid-up, non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), and fully transferable license and right to use, access, reproduce, create derivative works of, distribute, perform, display, process, publish, analyze, sell, offer for sale, and otherwise exploit (including combining, incorporating, or integrating with Splashup or third parties’ materials, information, and data) the Customer Data to provide, maintain, create, improve, and otherwise fully exploit the Services, the Splashup Data, and any other product or service of Splashup. As between the parties, subject to the express grants within the Terms, Customer owns all right, title and interest in and to the Customer Materials.
1.4 Services. Without limiting the generality of the licenses granted in Section 1.3, Splashup may combine Customer Data with similar or other data provided by other Splashup merchants or other third parties in the same grouping as Customer to (i) personalise recommendations presented to Customer's consumers during the checkout process, (ii) serve consumers ads; and (iii) provide Customer with audience lists to use for marketing on social media platforms (the "Audiences Service" and together with the Platform, the "Services"). Customer will obtain (and is responsible for obtaining) all consents and will provide (and is responsible for providing) all notices and opportunities to its consumers to opt-in or -out that may be required by Applicable Law for Splashup to (a) provide the Services to Customer using Customer Data and (b) grant the rights and licenses set forth in these Terms. "Applicable Law" means all applicable laws, rules, and regulations, including as applicable the General Data Protection Regulation (EU) 2016/679 (as may be amended or superseded, "EU GDPR"), the EU GDPR as incorporated into the United Kingdom law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as may be amended or superseded, “UK GDPR”), and the California Consumer Privacy Act (as may be amended or superseded, "CCPA").
1.5 Customer acknowledges that (i) Splashup is relying on Customer's timely, complete, and accurate provision of Customer Materials to Splashup for Splashup's provision of the Services and (ii) Splashup will not be responsible or liable for failures or delays to provide the Services to the extent they result from (a) Customer's delay or failure to provide the Customer Materials in a timely manner or (b) the inaccuracy or incompleteness of the Customer Materials.
1.6 Passwords; End Users. Customer is responsible for maintaining the confidentiality of its and its End Users’ passwords, IDs, and other credentials and login information (collectively, "Passwords"), and Customer agrees that Splashup has no liability with respect to the use, disclosure, or loss of any Passwords. Customer acknowledges that Passwords are personal to Customer or each End User, and Customer is responsible for ensuring that each Password is used only by the applicable End User. Customer will notify Splashup immediately if Customer has reason to believe that the security of Customer’s account has been compromised or if any of the Platform have been accessed by any unauthorized individuals. Customer is responsible for all acts or omissions of its End Users.
Fees and Payment Terms; Credits.2.1 Fees. Customer will pay to Splashup the then-current fees as set forth in Splashup’s Pricing Sheet (the “Fees”) within thirty (30) days of Splashup's invoice therefore. The Fees do not include taxes. All payments made under the Terms will be made (a) in Australian Dollars and (b) by check or by bank wire transfer in immediately available funds to an account designated by Splashup or by credit/debit card via an authorized Splashup payment processor.
2.2 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services excluding only taxes based solely on Splashup’s net income. Notwithstanding any terms to the contrary in this the Terms, (a) Splashup will not be obligated to issue any refunds for Fees paid, and (b) Splashup, at its sole discretion, may modify the Fees beginning on the expiration date of the Initial Subscription Term and annually thereafter, provided that modifications will only be effective as of the directly subsequent Renewal Subscription Term (as defined below).
2.3 Suspension. If any Fees under the Terms are thirty (30) days or more overdue, Splashup may, without limiting its other rights or remedies, (a) suspend Customer's and its End Users' access to and use of the Services until such Fees are paid in full or (b) immediately terminate the Terms without any further cure period and accelerate Customer’s unpaid Fee obligations such that all such obligations become immediately due and payable upon termination.
3. Confidentiality3.1 Definition. "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") (or all information (whether in oral, written, or other tangible or intangible form) acquired by the Receiving Party), concerning or related to the Terms or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party (or acquisition of the information by the Receiving Party), is proprietary information of the Disclosing Party. Without limiting the foregoing, any Splashup Data (as defined below), software scripts, or code provided or made available to Customer by Splashup as part of the Platform constitute Confidential Information of Splashup. Customer Data is not the Confidential Information of either party.
3.2 Obligations. The Receiving Party will maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted in the Terms. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations and exercising the Receiving Party’s rights under the Terms. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and contractors who have a need to know such Confidential Information in order to perform their duties under the Terms, and if such directors, officers, employees and contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 3.2. Each party agrees that it will not disclose the terms and conditions of the Terms to any third party, provided that each party may disclose the terms and conditions of the Terms (i) to such party’s legal counsel, accountants, banks, financing sources and their advisors, (ii) in connection with the enforcement of the Terms or rights under the Terms, or (iii) in connection with an actual or proposed merger, acquisition, or other transaction.
3.3 Feedback. Notwithstanding any terms to the contrary in the Terms, any suggestions, comments or other feedback provided by Customer to Splashup with respect to Splashup or the Services (collectively, "Feedback") is Splashup’s Confidential Information alone. Further, Splashup will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
3.4 Exceptions. Confidential Information will not include information that the Receiving Party can demonstrate (i) is in or enters the public domain without breach of the Terms and through no fault of the Receiving Party, (ii) was in its possession prior to first receiving it from the Disclosing Party without an obligation of confidentiality, (iii) was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information, or (iv) was received by the Receiving Party from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a "Court Order"), but solely on the conditions that the Receiving Party (a) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it, and (b) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 3.4, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
3.5 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4. Representations and Warranties; Additional Obligations.4.1 Each party. Each party represents and warrants that (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (ii) it has full corporate power and authority to execute, deliver and perform its obligations under the Terms, (iii) the person signing the Terms on its behalf has been duly authorized and empowered to enter into the Terms, and (iv) the Terms are valid, binding and enforceable against it in accordance with its terms.
4.2 Customer. Customer represents, warrants and covenants that (i) it possesses all necessary rights and consents to grant Splashup the rights set forth in the Terms with respect to all Customer Materials, (ii) it has collected and made available to Splashup, and will continue to collect and make available to Splashup, all Customer Materials in accordance with Applicable Law, (iii) neither the Customer Materials nor Splashup’s use of the Customer Materials in accordance with the Terms will (a) infringe, misappropriate, or otherwise violate any Intellectual Property Rights (as defined below) or other rights of any third party or (b) violate Applicable Law, (iv) Customer will use the Services in accordance with all Applicable Law, and (v) all Customer Materials are accurate and complete.
5. DisclaimersEXCEPT AS SET FORTH IN SECTION 4, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, EXCEPT AS SET FORTH IN SECTION 4, Splashup DOES NOT REPRESENT OR WARRANT THAT (i) THE ACCESS TO OR USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (ii) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS, (iii) ANY STORED CUSTOMER MATERIALS OR OTHER DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BE LOST, DAMAGED, OR CORRUPTED, (iv) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR Splashup WILL DETECT ANY BUG IN THE PLATFORM, (v) THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (vi) THIRD-PARTY DISRUPTIONS OR SECURITY BREACHES OF THE PLATFORM WILL BE PREVENTED. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL PRODUCTS (INCLUDING PRICING, SHIPMENT AND FULFILLMENT, DELIVERY, PRODUCT LIABILITY, AND COMPLIANCE WITH APPLICABLE LAWS) AND CUSTOMER ACKNOWLEDGES THAT Splashup ASSUMES NO RESPONSIBILITY OR LIABILITY FOR TRANSACTIONS BETWEEN CUSTOMER AND ANY USERS OF CUSTOMER'S WEBSITES OR SERVICES OR PURCHASERS OF PRODUCTS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT Splashup HAS NO RESPONSIBILITY OR LIABILITY FOR OTHER MERCHANTS OR OTHER MERCHANT STOREFRONTS USING THE PLATFORM, INCLUDING ANY MERCHANT STOREFRONTS ON WHICH PRODUCTS ARE DISPLAYED THROUGH USE OF THE PLATFORM OR MERCHANTS OPERATING SUCH STOREFRONTS.
6. Indemnification6.1 Indemnification by Splashup. Splashup, at its sole expense, will defend Customer from and against any and all third-party claims, suits, actions or proceedings (each a "Claim"), and indemnify and hold harmless Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees, costs, penalties, interest and disbursements) ("Losses") that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Splashup resulting from the Platform infringing any Intellectual Property Rights of any third party. Splashup’s defense obligations do not extend to Claims, nor do its indemnification obligations extend to Losses, resulting from, arising in connection with, or relating to (i) any negligent or willful misconduct of Customer or any End Users or any of Customer’s other employees, contractors, users, or service providers (collectively, the "Customer Parties") or any third party, (ii) any combination of the Platform (or any portion thereof) by any of the Customer Parties or any third party in combination with any equipment, software, data or any other materials not provided by Splashup, (iii) any modification to the Platform by any of the Customer Parties or any third party, (iv) the use of the Platform by any of the Customer Parties or any third party in a manner contrary to the terms of the Terms, (v) the continued use of the Platform after Splashup has provided substantially equivalent non-infringing software or services, (vi) any Customer Materials, or any Products or Customer services or other products, or (vii) any act or omission of any of the Customer Parties.
6.2 Indemnification by Customer. Customer, at its sole expense, will defend Splashup and its directors, officers, employees and agents ("Splashup Indemnitees") from and against any Claims and indemnify and hold harmless Splashup Indemnitees from any related Losses arising in connection with or relating to (i) any Products or Customer services or other products, (ii) any negligence or willful misconduct by Customer or a party acting on its behalf, (iii) any alleged or actual breach of Customer’s obligations under the Terms (including any alleged or actual breach of any of Customer’s representations or warranties); (iv) any alleged or actual infringement, misappropriation, or other violation of any third party rights in connection with any Customer Materials (including the use thereof); or (v) any act or omission by Customer relating to the collection, use, or provision of any Customer Materials.
6.3 Infringement Claims; Sole Remedy. In the event of a Claim pursuant to Section 6.1, or if Splashup believes such a Claim may be brought, Splashup may, at Splashup’s option and at Splashup’s expense, (i) replace the Platform, (ii) modify the Platform, (iii) procure for Customer the right to continue using the Platform, or (iv) terminate this the Terms upon thirty (30) days written notice to Customer. SECTION 6.1 AND THIS SECTION 6.3 ARE Splashup'S SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT ANY ALLEGED OR ACTUAL INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY BY Splashup OR THE PLATFORM.
6.4 Procedures. The indemnifying party’s indemnification obligations under this Section 6 are conditioned upon the indemnified party (i) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under this Section 6 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (ii) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (iii) providing reasonable cooperation to the indemnifying party, and at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
7. Limitation of Liability.7.1 Consequential Damages Waiver. IN NO EVENT WILL Splashup BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 Liability Cap. Splashup's ENTIRE LIABILITY TO CUSTOMER UNDER THE TERMS WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO Splashup DURING THE APPLICABLE SUBSCRIPTION TERM WITHIN WHICH THE DAMAGES OCCURRED.
7.3 Failure of Essential Purpose and Additional Limitation. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 7 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Term, Termination and Effect of Termination8.1 Term. The Terms commence on the date Customer enters into the Terms (the “Effective Date”) and, unless earlier terminated as set forth in Section 8.2, continues for thirty (30) days (the “Initial Subscription Term”). On the expiration of the Initial Subscription Term, the Terms will automatically renew for successive Subscription Terms equal in length to the Initial Subscription Term (each, a "Renewal Subscription Term").
8.2 Termination. Either party may terminate the Terms during the Renewal Subscription Term by providing at least thirty (30) days prior written notice to the other party. Additionally, either party may terminate the Terms, for cause, if the other party materially breaches the Terms and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach. Notwithstanding any terms to the contrary in the Terms, Splashup may suspend use of the Platform (or any portion thereof) without liability if Splashup reasonably determines that (i) Splashup is required by any applicable law to suspend the Platform or (ii) Customer is in material breach of the Terms.
8.3 Effect of Termination or Expiration. Upon any termination or expiration of the Terms, (i) all rights granted to Customer under the Terms will immediately cease, (ii) Customer will immediately pay to Splashup all amounts due and payable up to the effective date of termination or expiration of the Terms, and (iii) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in the Terms, Sections 1.3(ii), 2, 3, 4.2(iii), 5, 6, 7, 8.3, 9, 10, and 11 will survive any termination or expiration of the Terms.
9. Additional Rights, Ownership, and Reservation of Rights9.1 As between the parties and subject only to the express grants within the Terms, to the extent permitted under applicable law, Splashup owns all right (including all Intellectual Property Rights), title and interest in and to the Platform (and any and all modifications to or derivative works of the Platform), the Splashup Data (as defined below), the Usage Data (as defined below), the Services, and the Feedback (collectively, the “Splashup Property”). Subject only to the express grants in the Terms, nothing in the Terms will be construed to restrict, impair, encumber, alter, deprive or adversely affect Splashup’s rights in the Splashup Property. Notwithstanding the above, to the extent Customer has any right, title or interest in any Splashup Property, Customer hereby assigns to Splashup all right, title and interest in and to such Splashup Property and agrees to perform such further acts as may be reasonably necessary to evidence or perfect such assignment. If for any reason this assignment is ineffective, Customer hereby grants to Company a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, exclusive, sublicensable (through multiple tiers), transferable license to use, access, reproduce, create derivative works of, distribute, perform, display, process, publish, analyze, and otherwise exploit the Splashup Property.
9.2 Each party reserves all rights not expressly granted in the Terms, and no licenses are granted by a party to the other party under the Terms, whether by implication, estoppel or otherwise, except as expressly set forth in the Terms.
9.3 "Intellectual Property Rights" means any and all rights, anywhere in the world, whether statutory, common law or otherwise, relating to, arising from, or associated with intellectual property, including (i) patents and patent applications; (ii) copyrights and all other rights with respect to works of authorship (including moral rights), and all registrations and applications of or for the same; (iii) rights with respect to trademarks, and all registrations and applications of or for the same; (iv) rights with respect to trade secret; (v) rights with respect to databases and other compilations and collections of data and information, including all registrations and applications of or for the same; (vi) publicity and privacy rights; and (vii) any rights equivalent or similar to any of the foregoing.
9.4 “Splashup Data” means any and all data, information or other materials created, collected, developed, inferred, discovered, or devised by, or on behalf of, Splashup (including with use of any Customer Materials).
9.5 “Usage Data” means any and all data, information, or statistics regarding the use of the Services (collectively, "Usage Data"). Customer acknowledges and agrees that Splashup may create, monitor, collect, use and store Usage Data.
10. RestrictionsExcept as expressly authorized by the Terms, Customer may not (i) modify, disclose, alter, translate or create derivative works of the Platform (or any components thereof), (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform (or any components thereof), (iii) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or attempt to create the source code of the Platform or its structural framework (in whole or in part), or perform any process intended to determine the source code for the Platform, (iv) use the Platform to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, (v) copy, frame or mirror any part or content of the Platform, (vi) build a competitive product or service, or copy any features or functions of the Services, (vii) interfere with or disrupt the integrity or performance of the Platform, (viii) attempt to gain unauthorized access to the Platform or their related systems or networks, (ix) disclose to any third party any performance information or analysis relating to the Platform, (x) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Platform or the functionality of the Platform, (xi) take any action that imposes an unreasonable or disproportionately large load on the Platform, (xii) use the Services for any purpose that is illegal in any way or that advocates illegal activity, or (xiii) cause or permit any individual or entity to do any of the foregoing.
11. General Provisions11.1 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
11.2 Governing Law and Venue. The Terms will be governed by and construed in accordance with the laws of New South Wales without resort to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in Sydney, NSW , in any litigation arising out of or relating to the Terms.
11.3 Publicity. Notwithstanding any terms to the contrary in the Terms, Customer consents to Splashup’s use of Customer's name and logo on the Splashup website and on Splashup’s promotional and marketing related materials, identifying Customer as a customer of Splashup and describing Customer's use of the Services. On request from Splashup, Customer will participate in a case study and related blog post with respect to its use of the Services, provided that such case study and blog post will not be published until Splashup has obtained Customer’s approval (and such approval will not be unreasonably withheld).
11.4 Third-Party Platforms. Customer acknowledges and agrees that Splashup uses third-party hosting infrastructures and other services in connection with the Platform ("Third-Party Platforms") and, notwithstanding any terms to the contrary in the Terms, Splashup disclaims any liability with respect to any Third-Party Platforms. Customer agrees to abide by the terms and conditions provided by Splashup with respect to any Third-Party Platforms.
11.5 Modifications. Notwithstanding any terms to the contrary in the Terms, Customer acknowledges and agrees that Splashup may modify features of the Services from time to time at Splashup’s sole discretion, provided that such modifications will not materially degrade the Services.
11.6 Assignment. Neither the Terms nor any right or duty under the Terms may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, Splashup may freely assign the Terms or any right or duty under the Terms to an affiliate or to any successor to substantially all of its business or assets to which the Terms relate, whether by merger, sale of assets, sale of stock, reorganization, or other transaction. The Terms will be binding upon and enforceable against any successor or permitted assignee.
11.7 Amendments and Waivers. Splashup may change these Terms by providing notice of the change to Customer. Splashup may provide such notice by posting the revised terms on its website, by sending an email to the email address on file for Customer or by providing notice through the Platform. If Customer does not agree with the change, Customer must immediately discontinue using the Services. Customer will be deemed to have agreed to be bound by the change if Customer continues using the Services following Splashup’s provision of notice regarding such change. All Order Forms incorporating a link to these Terms are governed by the current version of the Terms then in effect and found at the link, which amends and supersedes all prior versions of the Terms with respect to all existing Order Forms. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.8 Notices. Any notice or communication required or permitted to be given hereunder will be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on the Terms or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of ten (10) days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
11.9 Severability. If any provision of the Terms are invalid, illegal or unenforceable in any jurisdiction, (i) such invalidity, illegality or unenforceability will not affect any other provision of the Terms or invalidate or render unenforceable such provision in any other jurisdiction, and (ii) such provision, in such jurisdiction, will be replaced by a valid, legal and enforceable provision that best reflects the parties’ intent for such first provision.
11.10 Audit. Splashup may, by itself or through an independent third party, audit Customer’s use of the Platform to verify (i) Customer's use of the Platform for purposes of calculating Fees and (ii) that Customer is in compliance with the terms and conditions of the Terms. Customer agrees to provide reasonable access to Customer’s systems and records for purposes of conducting these audits.
11.11 Counterparts. The Terms may be executed (i) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (ii) by the parties by exchange of signature pages by mail or email (if email, signatures in Adobe PDF or similar format).
11.12 Maintenance. Notwithstanding any terms to the contrary in the Terms, Customer acknowledges and agrees that Splashup may conduct maintenance on the Platform from time to time without prior notice to Customer.
11.13 Interpretation. The section headings of the Terms are for convenience only and have no interpretive value. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Each party acknowledges that it has had an opportunity to review the Terms with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter. The word “or” will not be exclusive. Where a word is defined in the Terms, references to the singular include references to the plural and vice versa.
11.14 Force Majeure. Except for payments due under the Terms, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Splashup, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
Approved by: Splashup team under “Splashup Pty Ltd.”