Slinger Studios Inc (Bitsmash) Terms of Use

This "Service" (as defined below) is owned and operated by Slinger Studios Inc (referred to herein, solely for ease of reference, as "Bitsmash", "us" or "we"). These terms of use (the "Terms", "Terms of Use", "TOU" or "Agreement") set forth the legal terms and conditions governing your use of our service and any other online and mobile websites and interactive applications operated by Bitsmash (collectively, the "Service") (unless a different policy is provided on a particular site, application or service, in which case such different policy shall govern and control). Your use of this Service confirms your unconditional agreement to be bound by these Terms of Use and is subject to your continued compliance with these Terms of Use. If you do not agree to be bound by these Terms of Use, you may not access or otherwise use the Service. Before using the Service, please review the related Bitsmash Studios Inc Privacy Policy, located in settings (the "Privacy Policy"), which is incorporated herein by this reference.

Eligibility

The Service is intended solely for users thirteen (13) years of age and older. You represent and warrant either that you are eighteen (18) years of age or older, or if you are under the age of eighteen (18) that you are at least thirteen (13) and are accessing the Service with the knowledge and consent of your parent or legal guardian, who will also be deemed to have agreed to this Agreement on your behalf. At a later date, we may offer additional Services with additional terms that may require you to be even older to use them. So please always read all terms carefully.

By using the Services, you state that:

If you are using the Services on behalf of a business or some other entity, you state that you are authorized to grant all licenses set forth in these Terms and to agree to these Terms on behalf of the business or entity.

Rights We Grant You

Bitsmash grants you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Services. We grant you this license for the sole purpose of allowing you to use the Service in accordance to these Terms, and any and all of our other policies, allow.

Please be aware that our software may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your computer or device's settings.

You do not have permission to copy, modify, distribute, sell, or lease any part of our Services. You may not reverse engineer or attempt to extract the source code our software, unless applicable laws prohibit these restrictions or you have our written consent.

Rights You Grant Us

Our Services lets you create, upload, post, send, receive, and store Content ("Content"). All of the Content that is created, uploaded, posted, is sent to and available to all users of the Service. When you do that, you grant Bitsmash a worldwide, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that Content. You also grant us a perpetual and irrevocable license to create derivative works from, promote, exhibit, broadcast, syndicate, publicly perform, and publicly display Content that is submitted to the public in any form and in any and all media or distribution methods (now known or later developed). To the extent it's necessary, you also grant Bitsmash and our business partners the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice solely in Content on the Service that you appear in, create, upload, post, or send. This means that you will not be entitled to any compensation from Bitsmash or our business partners if your name, likeness, or voice is conveyed in Content that is submitted to the Service.

We may access, review, screen, and delete your Content at any time and for any reason, including if we think your Content violates these Terms. You alone remain responsible for the Content you create, upload, post, send, or store through the Service. We reserve the right to suspend or cancel your participation in the Service for violating these terms.

The Services may now, or in the future, contain advertisements. In consideration for Bitsmash letting you access and use the Services, you agree that Bitsmash, its affiliates, and third-party partners may place advertising on the Services including, but not limited to, advertising on your Content.

Rights You Grant Other Users

Our Service lets you create, upload, post and send a specific type of Content (called "Reactions") to other users' (called the "Hero"). Posting Reactions are a way to comment on the Hero's Story ("Story"). When you send a Reaction, you grant Bitsmash the same rights granted for all other Content referenced above and you also grant the Hero the right to use the Reaction in their Story ("Story"). When you post a Reaction, you also warrant that it conforms will all other Terms contained herein.

4. The Content of Others

Much of the Content on our Services is produced by users, publishers, and other third parties. The Content, and the originality thereof, is the sole responsibility of the person or organization that submitted it. Bitsmash reserves the right to review all Content that appears on the Services and will remove any Content that violates these Terms, following notice thereof. WE DO NOT TAKE RESPONSIBILITY FOR ANY CONTENT THAT OTHERS PROVIDE THROUGH THE SERVICES.

Privacy

Your privacy is extremely important to us. If you wish to learn more about how we handle your information when you use our Services, please read our privacy policy (hyperlink to privacy policy). We encourage you to carefully read the privacy policy, and by using our Services, you agree that Bitsmash can collect, use, and transfer your information consistent with that policy.

Other People's Rights

Bitsmash respects the rights of others and expects users to do the same. Therefore, you are prohibited from uploading, posting, sending, or storing Content that:

You must also respect Bitsmash's rights. These Terms do not grant you any right to:

You hereby affirm, represent and warrant that you own or have necessary licenses, rights, consents, and permissions to publish the Content you upload. You may not use the Services or the Content on the Services in ways that are not authorized by these Terms, and you may not help or enable anyone else to do accordingly so.

Respecting Copyright

Bitsmash honors the requirements set forth in the Digital Millennium Copyright Act ("DMCA"). Per the requirements of the act, we take reasonable steps to expeditiously remove from our Services any material that we become aware of that we reasonably believe is infringing another person's or entity's rights. If Bitsmash becomes aware that one of its users has repeatedly infringed copyrights, we will take reasonable steps to terminate the user's account.

We try to make it as easy as possible for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please contact chris@bitsmash.com or tap the report button. Or you may file a notice with our designated agent:

chris@bitsmash.com

If you file a notice with our Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:

Safety

We want Bitsmash to be a safe service for everyone to use and try hard to make it as safe as possible. By using the Services, you agree that:

Your Account

You are responsible for any and all activity that occurs in your account. Therefore, it is important that you keep your account secure. A good way to do this is by creating a strong password with a combination of letters, numbers, special characters, and uppercase and lowercase characters. Additionally, we suggest that you do not use the same password that you may use for another third-party account or service.

By using the Services, you agree that:

If you believe that your account has been compromised, please immediately reach out to Bitsmash Support chris@bitsmash.com.

Data Charges and Mobile Phones

You are responsible for any mobile charges that you may be incurred by using our Services, including text-messaging and data charges. If you're unsure what those charges may be, you should inquire with your service provider before using the Services. Bitsmash shall not be responsible for any mobile charges from accessing or using the service.

Third-Party Services

If you use a service, feature, or functionality that is operated by a third party and made available through our Services (e.g. signing into your account through Facebook), including Services we jointly offer with the third party, each party's terms will govern the respective party's relationship with you Bitsmash is not responsible or liable for those third party's terms or actions taken under the third party's terms.

Modifying the Services and Termination

Bitsmash reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Service or these Terms, in whole or in part, at any time without further notice. For changes to these Terms that we deem material, we will place a notice on the Service indicating the Terms have been updated. If you access or use the Service in any way after the Terns have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these Terms will be available on the website and will supersede all previous versions of these Terms.

Bitsmash, in its sole discretion, may terminate these Terms with you at any time, for any reason, and without advanced notice. Furthermore, you understand and agree that Bitsmash may, in its sole discretion and at any time, terminate your password, account, and discard and remove any Content posted or submitted by you, and/or prohibit you from accessing the Service, in whole or in part, for any reason or none, at any time in its sole discretion, with or without notice. You understand and agree that Bitsmash shall not have any liability to you or any other person for any termination of your access to the Service and/or the removal of information concerning your account or Content.

Indemnity

You agree, to the extent permitted under applicable law, to indemnify, defend, and hold harmless Bitsmash Studios Inc, our directors, officers, employees, and affiliates from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorney's fees) due to, arising out of, or relating in any way to: (a) your access to or use of the Services; (b) your Content; and (c) your breach of these Terms.

Disclaimers

We try extremely hard to keep the Services up and running and free from annoyances. Unfortunately, sometimes the Services may become unavailable and we make no promises that the Service will always run smoothly.

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND TO THE EXTENT PERMITTED BY APPLICABLE LAW WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE Bitsmash ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY Bitsmash CONTENT, USER CONTENT, OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.

Bitsmash TAKEs NO RESPONSIBILITY AND ASSUME a NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH Bitsmash WILL BE RESPONSIBLE FOR.

Limitation of Liability; Waiver

UNDER NO CIRCUMSTANCES WILL THE Bitsmash PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) OUR CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE Bitsmash PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE Bitsmash PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE Bitsmash PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE Bitsmash PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF Bitsmash'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE Bitsmash PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE Bitsmash PARTIES.

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

Bitsmash IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Bitsmash makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Service. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Bitsmash. Views and opinions of users of the Service do not necessarily state or reflect those of Bitsmash. Users are responsible for seeking the advice of professionals, as appropriate, regarding the information, opinions, advice or Content available as part of the Site.

Arbitration, Class Waiver, and Jury Waiver

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH Bitsmash, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

  1. Applicability of Arbitration Agreement. All claims and disputes arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis. Notwithstanding the foregoing, either party may seek preliminary injunctive relief regarding their claims in a court.
  2. Arbitration Rules. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator.
  3. Waiver of Jury Trial. YOU AND Bitsmash WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.
  4. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 18.
  5. Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
  6. Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
  7. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Bitsmash.

Exclusive Venue

To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Bitsmash agree that all claims and disputes arising out of or relating to the Terms or the use of the Services will be litigated exclusively in a court of competent jurisdiction in the state of California.

Choice of Law

Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.

Severability

If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.

Additional Terms for Specific Services

Given the breadth of our Services, we sometimes need to craft additional terms and conditions for specific Services. Those additional terms and conditions, which will be available with the relevant Services, then become part of your agreement with us if you use those Services.

Final Terms