1.0 Terms of Service

1.1 These Terms Of Use set out the terms upon which you may access and use the Splash Pro plug-in software (the “Software”) which is designed for use with Ableton DAW software. 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 Software you agree to the terms of these Terms Of Use and our Privacy Policy. You should review these Terms Of Use and our Privacy Policy carefully and immediately cease using the Software 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 Software following the date such amended terms take effect will be deemed to be acceptance of any amended terms.

2.0 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 Software and in all of the material (including all text, graphics, logos, sound recordings, musical works and other copyright works) made available in the Software (Content).

2.2 You may use the sound recordings you create using the Software for any commercial or non-commercial purpose, on a royalty-free basis, however your use of the Software and the Content does not transfer to you ownership of any IP Rights in the Software or the Content.

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

3.0 Prohibited Activity

3.1 You must not:

  1. use the Software 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 including the Ableton DAW software;
  2. use the Software in connection with any criminal or tortious activity or the infringement of intellectual property rights;
  3. sub-license, sell, lend or lease the Software;
  4. reverse engineer, decompile, disassemble, or attempt to obtain the source code of, the Software;
  5. delete, circumvent or alter any legal notices, rights management information or technological protection measures within the Software;
  6. engage in any malicious activity in connection with the Software, or any activity which may overload or harm our servers or other infrastructure;
  7. engage in data harvesting or any similar activity in connection with the Software;
  8. 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;
  9. interfere with the use of the Software by others, including but not limited to interfering with the computer systems which support the Software, overloading a service, engaging in a denial-of-service attack, or attempting to disable a host;
  10. use the Software or its output to create, train or modify any product or service which is similar to or competitive with the Software, and/or which is an artificial intelligence product or service; or
  11. permit, encourage or assist any other person to do any of the above.
  12. (“Prohibited Activity”).

3.2 We may suspend or terminate your use of the Software if:

  1. we reasonably believe that you have engaged in Prohibited Activity, or have breached these Terms Of Use;
  2. you do not co-operate with any reasonable investigation by us of any suspected breach of these Terms Of Use; or
  3. we are required by a regulatory body, or by law, to suspend or terminate use of the Software.

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

4.0 Third Party Services

4.1 The Software may contain links or references to internet sites operated by third parties. These third party sites are not under our control and we are not responsible for the content of these sites. We make no representations or warranties and accept no responsibility for the accuracy, completeness, content or use of the information accessible from these sites. When you access such third party sites you do so at your own risk.

5.0 Fees

5.1 The Software 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.

6.0 Support

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

7.0 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:

  1. any breach or alleged breach by you of any of your warranties or obligations in these Terms Of Use;
  2. your use of the Software; or
  3. any violation by you of any law or the rights of any third party, or any law.

8.0 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).

To the maximum extent permitted by law (but subject to clause 8.1):

  1. we make no warranties of any kind, express or implied, about the Software, including but not limited to any warranties:
    1. about the accuracy and reliability of any material contained in the Software;
    2. that the Software will meet your requirements or achieve any particular result;
    3. that your access to or use of the Software will be free from errors, defects, bugs or viruses, uninterrupted, or reparable if damaged or impaired;
  2. 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 Software; and
  3. 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 and indirect loss, damage or expense, loss of profits, loss of revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, loss of business, or any other loss not arising naturally from the relevant breach – irrespective of the manner in which it occurs – which may be suffered due to a your use of the Software, or as a result of the inaccessibility of the Software 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:

  1. the resupply of the Software to you; or
  2. the payment of the cost of having the Software supplied to you again.

9.0 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 the Software and the other matters dealt with in these Terms Of Use.

10.0 No Assignmnet

10.1 You may not assign or transfer any rights under these Terms Of Use to any third party without our prior written consent.

11.0 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 the Licence will be unaffected.

12.0 Interpretation

12.1 In these Terms Of Use:

  1. a reference to natural person includes a corporation, partnership, government body or any other legal entity;
  2. 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
  3. “including” and similar expressions are not words of limitation.

13.0 Jurisdiction and governing law

13.1 Your use of the Software and These Terms Of Use are governed by the law of Queensland, Australia and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Queensland.

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