THE FOLLOWING DESCRIBES THE TERMS ON WHICH GIGSPLASH ENTERPRISE. (“GIGSPLASH”) OFFERS YOU ACCESS TO OUR SERVICES.
Gigsplash acts only as an online destination where buyers of entertainment (the “Host(s)”) and performers (the “Artist(s)”, and collectively with the Hosts referred to herein as the “Member(s)”) may find each other and agree to terms whereby Hosts pay Artists for their live performance (such live performance referred to herein as the “Engagement(s)”). Gigsplash assumes no liability hereunder and, in furtherance thereof and for the benefit of Gigsplash, Enterprise, it is agreed that neither Host nor Artist will name or join Gigsplash, or any of its officers, directors, principals, agents, employees and/or representatives as a party in any civil action or suit anywhere in the world, arising out of, in connection with, or related to any acts or commission or ommission pursuant to or in connection with Host’s or Artist’s use of Gigsplash or the Engagements contemplated herein. As is the case with sites of this kind, we have limited control over the quality, safety or legality of the services advertised. In the unlikely event there is a dispute, we require Gigsplash Artists to comply with our resolution process. Artists and Hosts permit us to make a final decision, in our sole discretion, on any claim that a buyer files with Gigsplash under the Gigsplash Event Entertainment Protection Policy. We strongly encourage Hosts to work with Artists before opening a claim relating to the booking of an Engagement. Hosts and Artists agree to follow the requirements of the Gigsplash Entertainment Event Protection Policy outlined in section 21.0 with respect to claims. Gigsplash protection covers only claims filed in accordance with the Gigsplash Entertainment Event Policy. We may suspend the Gigsplash Event Entertainment Protection Policy without notice if we suspect abuse or interference with the proper working of the program. We reserve the right to fix any processing errors we discover. We will correct any processing errors by debiting or crediting the payment method used for the erroneous Gigsplash refund or reimbursement.
Without limiting any other remedies, Gigsplash may, but is not obligated to, suspend or terminate your account and/or membership if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity, misrepresentation, or falsehoods in connection with the Site.
You understand that the Site and Gigsplash’s services are intended for your personal use only. You agree not to harvest or collect email addresses or other contact information of other Site users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. In addition, you agree not to use automated scripts to collect information from the Site. You agree that you will not use the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site.
2.1 General Rules of Conduct.
You are solely responsible for the content or information you publish, display or otherwise communicate in any manner (hereinafter, “Post”) on the web site, or transmit to other Members. You will not Post on the web site, or transmit to other Members, Artists, or Hosts, or otherwise communicate any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). Furthermore, you will not take actions to promote the physical harm or harassment of another person, engage in or promote spamming, provide information that you know is illegal, false or misleading, or designed to exploit those under 18 or otherwise provide instructional information about illegal activities such as making or buying illegal weapons, violating someone else’s right to privacy or providing or creating computer viruses.
You will use the web site in a manner consistent with any and all applicable local, state, national and international laws and regulations, including, but not limited to, Philippines export control laws.
You will not provide inaccurate, misleading or false information to Gigsplash or to any other Member. If information provided to Gigsplash, or another Member, subsequently becomes inaccurate, misleading or false, you will promptly notify Gigsplash of such change.
You will not impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity. You will not engage in advertising to, or solicitation of, other Members to buy or sell any products or services other than the services listed when creating an accoint through the web site. You will not transmit any chain letters or junk E-mail to other Members.
You will not post, copy, modify, transmit, show in public or private, create any derivative works from, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.
You will not, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
You will promptly report to Gigsplash any violation of the terms of this Agreement by other Members.
Gigsplash reserves the right, but has no obligation, to monitor the materials posted in the public areas of the website. Gigsplash shall have the right, but not the obligation, to remove any such material that in its sole opinion violates, or is alleged to violate, any applicable law or either the letter or spirit of this Agreement. Notwithstanding this right of Gigsplash, YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF THE MATERIALS YOU POST IN THE PUBLIC AREAS OF THE WEB SITE AND IN YOUR PRIVATE E-MAIL MESSAGES. E-mails sent between you and other Members that are not readily accessible to the general public will be treated as private by Gigsplash to the extent permitted by applicable law.
3. CONTENT POSTED BY YOU. By publishing, displaying or uploading any text, links, photos, audio, video, messages or other data or information (collectively, “Content”) to the Site, you represent and warrant that: (i) you have full right and power to enter into and perform under these Terms and Conditions, and have secured all third-party consents, licenses and permissions necessary to enter into and perform under these Terms and Conditions; (ii) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Gigsplash to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all of your Content to enable inclusion and use of such Content in the manner contemplated by the Site and these Terms and Conditions; (iii) none of your Content is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights; (iv) your Content is not and will not be defamatory, trade libelous, pornographic or obscene; and (v) you are at least 18 years of age.
By submitting Content to the Site (other than music files), you hereby grant to Gigsplash an irrevocable, perpetual, nonexclusive, fully-paid and worldwide license to use, copy, perform, display and distribute such Content, including but not limited to your name and likeness, and to prepare derivative works of, or incorporate into other works, such Content and to grant and authorize sublicenses of the foregoing. You also irrevocably grant the Site’s users the right to access your Content in connection with their use of the Site. In addition, you irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to your Content.
By submitting Content to the Site, you also acknowledge and agree that you alone are responsible for your Content. You assume all risks associated with your Content, including anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in your Content that makes you personally identifiable. You also understand and acknowledge that you may expose yourself to liability if, for example, your Content violates any third-party right, including any trademark, patent, copyright, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right of any third party; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful; or violates any law or regulation.
Gigsplash reserves the right to remove any Content and Member Submissions at its sole discretion, at any time, for any reason or no reason, without notice or liability.
Other than as set forth elsewhere in these Terms and Conditions, Gigsplash owns and retains all proprietary rights in the Site, including without limitation all visual interfaces, interactive features, graphics, design, compilation, computer code, products, software and all other elements and components of the Site. The Site contains certain copyrighted material, including links and compilations of individual data, trademarks and service marks and other proprietary information of Gigsplash, its account holders and licensors. Except for any information which is in the public domain, you may not use, copy, modify, publish, transmit, distribute, perform, display or sell any such proprietary materials or information without the express written consent in each case of Gigsplash. Access to the Site does not confer and shall not be considered as conferring upon anyone any license under any of Gigsplash’s or any third party’s intellectual property rights.
5. LICENSE AND SITE ACCESS.
Gigsplash grants you a limited license to access and make personal use of the Site and not to download or modify it, or any portion of it, except with express written consent of Gigsplash. This license does not include any resale or commercial use of the Site or its contents; any derivative use of the Site or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. Neither the Site nor any portion of it may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Gigsplash. Any unauthorized use terminates the license granted by Gigsplash.
6. COPYRIGHT POLICY.
Gigsplash operates a clear copyright policy with regard to any Member Submission that is alleged to infringe the copyright of a third party.
7. THIRD PARTY SITES.
This Site contains links to other Internet websites that third parties own or operate. Your use of each of those sites is subject to the terms and conditions, if any, that each of those sites have posted. Gigsplash has no control over third party sites and is not responsible for any changes to or content on them. Gigsplash’s inclusion of any material in its search database or a link on the Site is not an endorsement of that material or link or the companies that own or operate the material or linked sites. Reference on the Site to any names, marks, products or services of third parties or hypertext links to third party sites or information are provided solely as a convenience to you and do not in any way constitute or imply Gigsplash’s endorsement, sponsorship or recommendation of the third party, information, product or service. Gigsplash is not responsible for the content of any third party sites and we make no representations regarding the content or accuracy of material on such sites. If you decide to link to any such third party web sites, or purchase any third party products, you do so entirely at your own risk.
8. FEEDBACK INTEGRITY.
You may not take any actions that may undermine the integrity of the Gigsplash feedback system. We may, but shall not be obligated to, limit the number of Member feedback reviews you, as Host or Artist, may place on the Site based upon the level of your feedback. If you engage in the practice of libel, slander, foul language, threats and/or threatening language, Gigsplash has the right to remove or edit your feedback. Gigsplash also has the right not to edit or remove your feedback. All feedback will be published live on the Gigsplash Site at the discretion of Gigsplash. Feedback is not to be used by you, as Host or Artist, in order to threaten, harass, blackmail, or extort money, goods or services from other users, who may be Hosts or Artists. If Gigsplash concludes that feedback has been used by a Host or Artist to threaten, harass, blackmail, or extort money, goods/services from another Member, Gigsplash shall have the right, but not the obligation, to temporarily suspend or permanently remove said Host or Artist and delete their Gigsplash Membership from the Gigsplash website.
9. LIMITATION OF LIABILITY.
Under no circumstances and under no legal or equitable theory, whether in tort, contract, strict liability or otherwise, shall Gigsplash or any of its affiliates, employees, directors, officers, agents, vendors or suppliers be liable to you or to any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with the use of or inability to use the site, 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 an authorized representative of Gigsplash has been advised of or should have known of the possibility of such damages. In no event will Gigsplash be liable for any damages in excess of the fees paid by you in connection with your use of the site during the six month period preceding the date on which the claim arose. This limitation of liability is a material term for allowing your use of and access to the site.
10. DISCLAIMER OF WARRANTIES.
This site is provided on an “as is” and “as available” basis. Gigsplash makes no representations or warranties of any kind, express or implied, as to the operation of the site or the information, content, materials, products or services included on the site. To the full extent permissible by applicable law, Gigsplash disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Gigsplash disclaims any and all warranties, express or implied, for any products or services offered on this site. You acknowledge, by your use of the site, that your use of the site is at your sole risk. This disclaimer constitutes an essential part of this agreement. Certain states do not allow limitations on how long an implied warranty lasts, so the foregoing limitations may not apply to you, and you might have additional rights.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, including but not limited to Paragraph 1, or the documents this Agreement incorporates by reference, or your violation of any law or the rights of a third party. Furthermore, Host and Artist agree, jointly and severally, to indemnify and hold Gigsplash and Gigsplash’s respective officers, directors, principals, agents, employees and representatives, harmless from any and all claims and/or actions by any and all persons who suffer death, personal injury or property damage during or incidental to any Engagement or from any and all claims and/or actions arising out of or in connection with the agreement between Host and Artist, or Host’s and Artist’s use of Gigsplash.
12. LEGAL COMPLIANCE.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of live entertainment services and other related items. Furthermore, you represent and warrant that you shall comply with all laws in your geographic location that pertain to hosting, conducting, or staging an Engagement.
13. ROLE OF GIGSPLASH.
You and Gigsplash are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. In addition, Gigsplash is not engaging in or carrying on the occupation of a “Talent Agency”. Gigsplash does not promise to procure employment or engagements for any Artist. Gigsplash does not use its own efforts to, among other things, initiate contact between Artists and Hosts, set up meetings between Artists and Hosts, or negotiate the terms of employment between Artists and Hosts. Gigsplash acts solely as a platform/ intermediary whereby Artists and Hosts may use their own efforts to contact each other and the Gigsplash Commission is a fee charged for use of that platform.
Gigsplash has the explicit right, but not the obligation, to suspend and/or remove any Gigsplash Member from the Gigsplash Web Site at any time at its sole discretion. Without limiting the previous sentence, Gigsplash has the explicit right, but not the obligation, to suspend and/or remove any Gigsplash member from the Gigsplash website at any time for any breach or suspected breach of the terms of this Agreement.
14.1 Not Responding To Event Leads.
Gigsplash has the explicit right to temporarily suspend or permanently de-activate the Membership of any Gigsplash Member who fails to reply to five or more consecutive emails from a Host or Artist regarding an Engagement (such emails referred to herein as “Event Leads”).
14.2 Falsifying Bookings.
Gigsplash has the explicit right to temporarily suspend or permanently de-activate the Membership of any Gigsplash Member who falsifies bookings and/or Member information.
14.3 No-Shows, Cancellations, & Account Deactivation.
Gigsplash has the explicit right to temporarily suspend or permanently de-activate the Membership of any Gigsplash Member who has been a “no-show” for more than one Gigsplash booking.
14.4 Posting of Contact Information.
Gigsplash has the explicit right to temporarily suspend or permanently de-activate the Membership of any Gigsplash Member who posts contact information on said Member’s Gigsplash Profile Page. This contact information includes email links and addresses and telephone numbers. Contact information may not be posted in Profile Page photos, Profile Page text, and Profile Page audio/video samples. Capital letters may not be used when not appropriate in Profile Page group names and Profile Page descriptions.
14.5 Derogatory Comments & Slander.
Derogatory and/or slanderous comments made by Gigsplash Members about other Gigsplash Members and/or other non-Gigsplash Members are not permitted. Derogatory and/or slanderous comments made by Gigsplash Members about other implied Gigsplash Members and/or other implied non-Gigsplash Members are not permitted.
14.6 Booking Transaction Interference.
Gigsplash Artists may not contact a Gigsplash Host with an offer or suggestion to book a Gigsplash Gig outside of Gigsplash. Gigsplash Artists are not permitted to interfere with another Gigsplash Artist’s booking. Gigsplash Artists are not permitted to email or telephone Gigsplash Hosts in an open or completed booking to dissuade them from hiring another or different Gigsplash Artist. Similarly, Gigsplash Hosts are not permitted to email, telephone, or contact Gigsplash Artists in an open or completed booking to dissuade them from entering into an engagement with another or different Gigsplash Host. Discouraging Members from hiring or working with other Gigsplash Members is not permitted. Discouraging and/or preventing Hosts from booking Gigsplash Artists through Gigsplash is not permitted.
14.7 Farming of Event Leads.
The act of ‘farming’ out Event Leads is not permitted. Gigsplash defines ‘farming’ out of Event Leads as “to give up (as an estate or a business) to another on condition of receiving in return a fixed sum”, meaning – Gigsplash’s Artists are strictly prohibited from taking Event Leads provided to them and transferring these Event Leads to non-Gigsplash Artists and entities. An Event Lead is only to be utilized by the Gigsplash Artist who received said Event Lead from Gigsplash. If Gigsplash, Enterprise discovers that a particular Gigsplash Artist is farming out Event Leads, Gigsplash reserves the right to temporarily suspend or permanently remove said Gigsplash Member from the Gigsplash website and to terminate said Gigsplash Artist’s Membership.
14.8 Member Profile Page Photos, Audio, & Video.
Gigsplash is committed to providing our Members and Users with a secure, comfortable environment. Nude, obscene, sexual behavior, sexual or otherwise offensive photos, audio samples, or video samples are subject to potential removal. If the subject in your photo would be considered unacceptable on a family friendly public beach or not permitted to be shown on regular television, your photo will not be permitted on Gigsplash. Gigsplash reserves the right to crop or reject any photo at our discretion. Gigsplash reserves the right to reject any audio or video sample at our discretion.
14.9 Memberships Which Dissolve Due to Breakups or Other Extenuating Circumstances.
If a Gigsplash Artist (“Artist” can be either a solo act, duo, trio, quartet, quintet, ensemble or full band) breaks up, Gigsplash reserves the right to keep active, transfer, or terminate said Membership at the discretion of what Gigsplash deems appropriate, unless outside legal counsel or court of law dictates to the contrary. Gigsplash also reserves the right to keep active, transfer, or terminate previous Member feedback attached to any Gigsplash Member Profile Page at the discretion of what Gigsplash deems appropriate, unless outside legal counsel or court of law dictates to the contrary. General rules of thumb: In the event of a duo breakup, both Artists of the duo will typically need to re-register for brand new Gigsplash Memberships in order to remain with Gigsplash. In the event of a breakup involving larger groups (trio, quartet, quintet, ensemble or full band), the Gigsplash account will be owned by the the majority of the band members who stay together, if any. For example, if a five person band breaks up, and three of the five members remain together, Gigsplash will typically give these three members the right to hold onto the original Gigsplash Membership and/or previous Member feedback.
15. EVENT ENTERTAINMENT PROTECTION POLICY AND CANCELATION.
Both Host and Artist may cancel for any reason and without penalty no later than thirty (30) days prior to the Engagement. In the event that the Artist accepts the Host’s offer later than thirty (30) days prior to the Engagement, then either party shall have the right to cancel the Engagement within twenty four (24) hours of the Artist’s acceptance for any reason and without penalty. Both the thirty (30) day cancelation and the twenty four (24) hour cancellation shall be referred to herein as the “Cancellation Timeframe”. In the event that Artist cancels outside of the applicable Cancellation Timeframe, then Gigsplash shall, at its sole discretion, refund the Host’s Deposit and Balance, if any, and use best efforts to find a replacement band for the Host. However, Gigsplash cannot guarantee such a replacement will be available or satisfactory to the Host and is under no obligation to provide a replacement Artist. In the event that Host cancels outside of the applicable Cancellation Timeframe, then Host shall forfeit the Deposit and Balance to Gigsplash and Gigsplash shall pay the forfeited monies to the Artist as if the Engagement had played. In the event that an Artist or Host cancels outside of the applicable Cancellation Timeframe more than twice, then Gigsplash reserves the right, in its sole discretion, to suspend or cancel Artist’s or Host’s Gigsplash account.
16. BOOKING FEES AND PAYMENT.
There is no charge, other than the Gigsplash Commission (as defined below), to utilize the Gigsplash Web Site to search and contact Gigsplash Artists. If a Host makes an offer to an Artist listed on Gigsplash to play an Engagement, then upon the acceptance by the Artist of the Host’s offer, the Host shall be obligated to pay Gigsplash 50% of the talent fee (the “Deposit”) no later than thirty (30) days prior to the date of the Engagement in whatever payment form Gigsplash has chosen at its discretion. In the event that Artist accepts the Host’s offer with less than thirty (30) days to go before the proposed Engagement, then the Host’s Deposit shall be due within fourty eight (48) hours of the Artist’s acceptance. Once received, Gigsplash shall hold the Deposit in escrow until the Artist has fully performed at the Host’s Engagement. Once the Engagement has been completed to both Artist’s and Hosts’s good faith satisfaction, Gigsplash shall release the talent fee from escrow to the Artist and the Host shall be obligated to pay the Artist the remaining 50% of the talent fee.In the event that the Host does not pay either the Deposit or the Balance in the aforementioned time frame, then any agreement between the Host and Artist shall be null and void at Artist’s discretion, and the Artist shall not be obligated to perform at the Host’s Engagement.
17. THE GIGSPLASH COMMISSION.
Gigsplash operates on a commission basis and charges a given booking fee (displayed below) based on the talent fee for each Engagement in exchange for the Artist’s and Host’s use of Gigsplash. This commission is added to the talent fee paid by the Host alongside with the Deposit (as described in the above). In the event that an Engagement is canceled and Gigsplash determines in its sole discretion that the host is owed a refund, Gigsplash shall not commission the talent fee.
18. ONLINE DEPOSIT GUARANTEE.
In the event that the Artist does not show up to the Host’s Engagement, the Host may be entitled to a full refund of the talent fee. In order to be eligible to receive a full refund, ALL of the following criteria must be met in Gigsplash’s sole discretion:
1. The Host must have booked its event entertainment through Gigsplash.com.
2. The Host must have paid its deposit through Gigsplash.com.
3. The Artist the Host booked through Gigsplash must have failed to attend the Engagement.
4. The Host must notify Gigsplash about Artist’s failure to appear within two (2) days of the Engagement date. If an Artist fails to appear at an Engagement for which it has accepted an offer from a Host, and for which the Host has met all requirements described herein in Gigsplash’s sole discretion, then Gigsplash reserves the right to cancel or suspend the Artist’s Gigsplash account indefinitely.
19. RIGHT TO RECORD, FILM, AND PHOTOGRAPH ENGAGEMENTS.
Artist and Host shall grant to Gigsplash a royalty free, worldwide, and perpetual license to, and Gigsplash shall at all times have the right to film, record, photograph, or otherwise reproduce and record the Engagement, venue, and Artist (the “Recordings”), and reproduce or broadcast such Recordings throughout the universe in perpetuity, in any and all media now known or hereinafter devised, including without limitation, all forms of television, home video, digital download, radio and print for promotional usage of GigSplash.
20. EVENT SAFETY
Both Host and Artist represent and warrant that during the Engagement each shall maintain a safe and lawful premise for the Artist and attendees of the Engagement.
Host shall obtain and, at all times maintain, from the date of the Deposit through completion of the Engagement, public and comprehensive liability insurance coverage in a reasonable amount, comparable to the amounts per occurrence maintained by other concert promoters, buyers of live events, and hosts of live events (but in no event in amounts less than the limits required by the venue).
22. Third-Party Agreements
Both Host and Artist hereby represent and warrant to each other and to Gigsplash (a) that the Party so warranting and representing has the full right, power and authority to enter into and fully perform, unencumbered, its obligations in connection with the use of the Gigsplash site, including, but not limited to, the obligations set forth above, (b) that there are no other agreements or commitments, oral or written, with third-parties, including but not limited to agents and managers, that will interfere with its full performance hereunder, (c) that neither Host nor Artist are subject to any rights of third-parties or restrictions and no approvals of any kind are required by Artist, Host, or Gigsplash to exploit the rights granted hereunder in accordance with the terms of this agreement, and (d) neither Artist’s nor Host’s use of the Gigsplash site will violate any third-party agreements to which Artist or Host is a party. The services hereunder are offered by Gigsplash Enterprise.