EULA

Mobile Device Application

End User License Agreement

IMPORTANT – PLEASE READ CAREFULLY

This End-User License Agreement (this “Agreement”) is a legal agreement between ShuffleHead, Inc., a Ohio company (“ShuffleHead”, “we”, “us”, or “our”) and you, a user (“You” or “Your”) of one of our mobile application products, as further described below and/or on the website page on which such product is available for download (each, an “Application” or “App”, and collectively, “Applications” or “Apps”). 

YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE “ACCEPT” BUTTON ASSOCIATED WITH THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE APPLICATIONS TO WHICH THIS AGREEMENT RELATES. IF YOU DO NOT AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL, COPY, OR USE, AND YOU MUST IMMEDIATELY DELETE ALL COPIES OF, THE APPLICATION FROM YOUR DEVICE.

  1. 1. DESCRIPTION OF APPLICATION.  ShuffleHead offers for download, both for payment and free of charge, certain of its Apps which enable you to utilize certain functionality and perform certain tasks offered by each of such Apps.  The specific App to which this Agreement is being accessed by you is referred to hereunder as “the Application” or “the App”.
  1. 2. RESERVATION OF RIGHTS AND OWNERSHIP; THIRD PARTY CONTENT. ShuffleHead reserves all rights related to the App which are not expressly granted to you in this Agreement. The Application is protected by copyright and other intellectual property laws and treaties. As between ShuffleHead and you, ShuffleHead owns all title in and to the Application, including without limitation all copyright and other intellectual property rights in the Application.  You agree not to remove, conceal or otherwise modify any copyright, trademark or other proprietary notice or source identifier contained in or associated with the Application. We cannot and do not guarantee access to information or other content belonging to any third party which is accessible by you through the Application, the website from which the App is being downloaded, or otherwise. 
  1. By exercising the Licensed Rights (defined below), You accept and agree to be bound by the terms and conditions of this Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Public License (“Public License”). To the extent this Public License may be interpreted as a contract, You are granted the Licensed Rights in consideration of Your acceptance of these terms and conditions, and the Licensor grants You such rights in consideration of benefits the Licensor receives from making the Licensed Material available under these terms and conditions.
    1. Definitions
      1. Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image.
      2. Adapter’s License means the license You apply to Your Copyright and Similar Rights in Your contributions to Adapted Material in accordance with the terms and conditions of this Public License.
      3. BY-NC-SA Compatible License means a license listed at creativecommons.org/compatiblelicenses, approved by Creative Commons as essentially the equivalent of this Public License.
      4. Copyright and Similar Rights means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, sound recording, and Sui Generis Database Rights, without regard to how the rights are labeled or categorized. For purposes of this Public License, the rights specified in Section 2(b)(1)-(2) are not Copyright and Similar Rights.
      5. Effective Technological Measures means those measures that, in the absence of proper authority, may not be circumvented under laws fulfilling obligations under Article 11 of the WIPO Copyright Treaty adopted on December 20, 1996, and/or similar international agreements.
      6. Exceptions and Limitations means fair use, fair dealing, and/or any other exception or limitation to Copyright and Similar Rights that applies to Your use of the Licensed Material.
      7. License Elements means the license attributes listed in the name of a Creative Commons Public License. The License Elements of this Public License are Attribution, NonCommercial, and ShareAlike.
      8. Licensed Material means the artistic or literary work, database, or other material to which the Licensor applied this Public License.
      9. Licensed Rights means the rights granted to You subject to the terms and conditions of this Public License, which are limited to all Copyright and Similar Rights that apply to Your use of the Licensed Material and that the Licensor has authority to license.
      10. Licensor means the individual(s) or entity(ies) granting rights under this Public License.
      11. NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.
      12. Share means to provide material to the public by any means or process that requires permission under the Licensed Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation, and to make material available to the public including in ways that members of the public may access the material from a place and at a time individually chosen by them.
      13. Sui Generis Database Rights means rights other than copyright resulting from Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, as amended and/or succeeded, as well as other essentially equivalent rights anywhere in the world.
    2.  Scope
      1. License grant.
      2. Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
        1. reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only; and
        2. produce, reproduce, and Share Adapted Material for NonCommercial purposes only.
      3. Exceptions and Limitations. For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.
      4. Term. The term of this Public License is specified in Section 6(a).
      5. Media and formats; technical modifications allowed. The Licensor authorizes You to exercise the Licensed Rights in all media and formats whether now known or hereafter created, and to make technical modifications necessary to do so. The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures. For purposes of this Public License, simply making modifications authorized by this Section 2(a)(4) never produces Adapted Material.
      6. Downstream recipients.
      7. Offer from the Licensor – Licensed Material. Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License.
      8. Additional offer from the Licensor – Adapted Material. Every recipient of Adapted Material from You automatically receives an offer from the Licensor to exercise the Licensed Rights in the Adapted Material under the conditions of the Adapter’s License You apply.
      9. No downstream restrictions. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.
      10. No endorsement. Nothing in this Public License constitutes or may be construed as permission to assert or imply that You are, or that Your use of the Licensed Material is, connected with, or sponsored, endorsed, or granted official status by, the Licensor or others designated to receive attribution as provided in Section 3.a.
      11. Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.
      12. Patent and trademark rights are not licensed under this Public License.
      13. To the extent possible, the Licensor waives any right to collect royalties from You for the exercise of the Licensed Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme. In all other cases the Licensor expressly reserves any right to collect such royalties, including when the Licensed Material is used other than for NonCommercial purposes.
    3. License Conditions. Your exercise of the Licensed Rights is expressly made subject to the following conditions:
      1. Attribution.
        1. If You Share the Licensed Material (including in modified form), You must:
          1. retain the following if it is supplied by the Licensor with the Licensed Material:
            1. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated);
            2. a copyright notice;
            3. a notice that refers to this Public License;
            4. a notice that refers to the disclaimer of warranties;
            5. a URI or hyperlink to the Licensed Material to the extent reasonably practicable;
            6. indicate if You modified the Licensed Material and retain an indication of any previous modifications; and
            7. indicate the Licensed Material is licensed under this Public License, and include the text of, or the URI or hyperlink to, this Public License.
        2. You may satisfy the conditions in Section 3.c.i  in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.
        3. If requested by the Licensor, You must remove any of the information required by Section 3.c.i to the extent reasonably practicable.
    4. ShareAlike.
      In addition to the conditions in Section 3.c.i, if You Share Adapted Material You produce, the following conditions also apply.
      1. The Adapter’s License You apply must be a Creative Commons license with the same License Elements, this version or later, or a BY-NC-SA Compatible License.
      2. You must include the text of, or the URL or hyperlink to, the Adapter’s License You apply. You may satisfy this condition in any reasonable manner based on the medium, means, and context in which You Share Adapted Material.
      3. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, Adapted Material that restrict exercise of the rights granted under the Adapter’s License You apply.
    5. Sui Generis Database Rights.
      1. Where the Licensed Rights include Sui Generis Database Rights that apply to Your use of the Licensed Material:
        1. for the avoidance of doubt, Section 3.b.i grants You the right to extract, reuse, reproduce, and Share all or a substantial portion of the contents of the database for NonCommercial purposes only;
        2. if You include all or a substantial portion of the database contents in a database in which You have Sui Generis Database Rights, then the database in which You have Sui Generis Database Rights (but not its individual contents) is Adapted Material, including for purposes of Section 3.d; and
        3. You must comply with the conditions in Section 3.c if You Share all or a substantial portion of the contents of the database.
        4. For the avoidance of doubt, this Section 4 supplements and does not replace Your obligations under this Public License where the Licensed Rights include other Copyright and Similar Rights.
  2. Disclaimer of Warranties and Limitation of Liability.
    1. Unless otherwise separately undertaken by the Licensor, to the extent possible, the Licensor offers the Licensed Material as-is and as-available, and makes no representations or warranties of any kind concerning the Licensed Material, whether express, implied, statutory, or other. This includes, without limitation, warranties of title, merchantability, fitness for a particular purpose, non-infringement, absence of latent or other defects, accuracy, or the presence or absence of errors, whether or not known or discoverable. Where disclaimers of warranties are not allowed in full or in part, this disclaimer may not apply to You.
    2. To the extent possible, in no event will the Licensor be liable to You on any legal theory (including, without limitation, negligence) or otherwise for any direct, special, indirect, incidental, consequential, punitive, exemplary, or other losses, costs, expenses, or damages arising out of this Public License or use of the Licensed Material, even if the Licensor has been advised of the possibility of such losses, costs, expenses, or damages. Where a limitation of liability is not allowed in full or in part, this limitation may not apply to You.
    3. The disclaimer of warranties and limitation of liability provided above shall be interpreted in a manner that, to the extent possible, most closely approximates an absolute disclaimer and waiver of all liability.
  3. Term and Termination.
    1. This Public License applies for the term of the Copyright and Similar Rights licensed here. However, if You fail to comply with this Public License, then Your rights under this Public License terminate automatically.
    2. Where Your right to use the Licensed Material has terminated under Section 6.a it reinstates:
      1. automatically as of the date the violation is cured, provided it is cured within 30 days of Your discovery of the violation; or
      2. upon express reinstatement by the Licensor.
    3. For the avoidance of doubt, this Section 6.b does not affect any right the Licensor may have to seek remedies for Your violations of this Public License.
    4. For the avoidance of doubt, the Licensor may also offer the Licensed Material under separate terms or conditions or stop distributing the Licensed Material at any time; however, doing so will not terminate this Public License.
  4. Survivability
    1. The provisions of this End User License Agreement which by their terms call for performance subsequent to termination, shall so survive such termination, whether or not such provisions expressly state that they shall so survive.
  5. Other Terms and Conditions.
    1. The Licensor shall not be bound by any additional or different terms or conditions communicated by You unless expressly agreed.
    2. Any arrangements, understandings, or agreements regarding the Licensed Material not stated herein are separate from and independent of the terms and conditions of this Public License.
  6. Interpretation.
    1. For the avoidance of doubt, this Public License does not, and shall not be interpreted to, reduce, limit, restrict, or impose conditions on any use of the Licensed Material that could lawfully be made without permission under this Public License.
    2. To the extent possible, if any provision of this Public License is deemed unenforceable, it shall be automatically reformed to the minimum extent necessary to make it enforceable. If the provision cannot be reformed, it shall be severed from this Public License without affecting the enforceability of the remaining terms and conditions.
    3. No term or condition of this Public License will be waived and no failure to comply consented to unless expressly agreed to by the Licensor.
    4. Nothing in this Public License constitutes or may be interpreted as a limitation upon, or waiver of, any privileges and immunities that apply to the Licensor or You, including from the legal processes of any jurisdiction or authority.
  7. NO OTHER USE. The Application is intended solely for your personal use as described in this Agreement or otherwise as may be instructed or described by ShuffleHead in writing.  You may not sell, lease, charge fees for access to or any use of, the Application.
  8. TERMINATION.  If you fail to comply with any of the provisions of this Agreement, you may no longer use the Application and you shall permanently delete all copies of the Application from your device or which otherwise are then in your possession.
  9. DISCLAIMER OF WARRANTIES. YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK.  THE APPLICATION IS PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS, AND ShuffleHead HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, QUALITY, SAFETY, SUITABILITY, WORKMANLIKE EFFORT, LACK OF VIRUSES, LACK OF NEGLIGENCE, OR THAT THE APPLICATION WILL PERFORM IN ANY PARTICULAR FASHION OR PRODUCE ANY PARTICULAR RESULT, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE APPLICATION BY YOU OR ANY OTHER PERSON.  ShuffleHead ALSO IS NOT RESPONSIBLE FOR THE PROVISION OF ANY SUPPORT OR ANY OTHER SERVICES, OR THE FAILURE TO PROVIDE SUPPORT OR ANY OTHER SERVICES, IN CONNECTION WITH OR RELATED TO THE APPLICATION. THERE ARE INHERENT RISKS IN THE DOWNLOADING AND USING OF ANY SOFTWARE, AND ShuffleHead CAUTIONS YOU TO MAKE SURE THAT YOU COMPLETELY UNDERSTAND THE POTENTIAL RISKS BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE APPLICATION. NEITHER SHUFFLEHEAD NOR ANY PARENT, SUBSIDIARY OR AFFILIATED ENTITY OF SHUFFLEHEAD, NOR ANY OF THEIR PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, LICENSORS, SUPPLIERS, EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE “SHUFFLEHEAD PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES THAT YOU OR ANY THIRD PARTY MAY SUFFER IN CONNECTION WITH OR RELATED TO YOUR DOWNLOADING, INSTALLING, UNINSTALLING, MODIFYING OR OTHERWISE USING THE APPLICATION.
  10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHUFFLEHEAD OR ANY OF THE OTHER ShuffleHead PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, BUSINESS OR GOODWILL, OR FOR ANY ANTICIPATED LOST PROFITS, BUSINESS OR GOODWILL, FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING THAT OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER MONETARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION (OR YOUR INABILITY TO USE THE APPLICATION) OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.  THE FOREGOING SHALL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, FAULT, BREACH OF WARRANTY, BREACH OF CONTRACT OR OTHERWISE, EVEN IF SHUFFLEHEAD OR ANY OF THE OTHER SHUFFLEHEAD PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER INVOLVING THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY OF THE DAMAGES REFERENCED HEREIN), THE ENTIRE LIABILITY OF THE SHUFFLEHEAD PARTIES COLLECTIVELY, AND YOUR EXCLUSIVE REMEDY HEREUNDER, SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1,000) IF YOU ARE PAYING SHUFFLEHEAD FOR USE OF THE APP, OR ONE HUNDRED DOLLARS ($100) IF YOU ARE USING THE APP FREE OF CHARGE. THIS LIMITATION OF LIABILITY PROVISION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE PROVEN INEFFECTIVE.
  1. INDEMNITY.  You shall indemnify, defend and hold ShuffleHead and each of the other ShuffleHead Parties harmless from and against any and all threatened or actual claims, actions, suits and demands and any and all resulting losses, liabilities, damages, expenses and costs, including without limitation reasonable attorneys’ fees and disbursements, which arise in connection with or which are related to (a) your breach of this Agreement, including without limitation your use of the Application in any manner not expressly permitted hereunder, or (b) your negligence or misconduct, or (c) your violation of any law or regulation.
  1. PRIVACY.  ShuffleHead views the protection of your privacy as an important responsibility.  The terms regulating the handling of personally identifiable information (“PII”) and other information submitted by you in connection with the App is described in the ShuffleHead App privacy policy (the “Privacy Policy”) located via the homepage of our website at www.ShuffleHead.com/app-privacy-policy.html.  By using the App, you consent to the collection and use by us of your PII as well as all other information as described in the Privacy Policy.
  1. GOVERNING LAW; ARBITRATION; NO CLASS CLAIMS; TIMELY FILING OF CLAIMS.  This Agreement shall be governed and construed in accordance with the laws of the State of Ohio, excluding Ohio’s choice-of-law principles, and all claims arising out of or relating to this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Ohio, excluding Ohio’s choice-of-law principles.  Any dispute arising out of or relating to your use of the Application or otherwise related to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.  The arbitration will be conducted in the City of Cleveland, State of Ohio, by an arbitrator with applicable industry expertise in the mobile app industry, who shall be named in accordance with such rules. The award of the arbitrator shall be final and binding on you and us, and shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such an arbitration proceeding including without limitation all evidence and materials submitted by you or us shall be kept strictly confidential by you.  You shall pay for your own legal costs and expenses involved in any such arbitration, including without limitation reasonable attorneys’ fees, and we shall pay for all of our such costs and expenses unless the matter being arbitrated involves your breach of any of the provisions of this Agreement, in which case you shall pay both for your as well as for our legal costs and expenses including without limitation reasonable attorneys’ fees incurred by us in pursuing such a claim. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED.  Notwithstanding the foregoing, either party may apply to any federal or state court sitting in the County and State of Ohio for injunctive relief or enforcement of this arbitration provision or for a breach of any party’s ownership rights in and to the Application, without breach of this arbitration provision. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM, SUIT OR ACTION THAT YOU MAY HAVE AGAINST ANY OF THE ShuffleHead PARTIES ARISING UNDER OR RELATED TO THIS AGREEMENT MUST BE BROUGHT BY YOU PURSUANT TO THIS SECTION 11 AND WITHIN ONE (1) YEAR AFTER THE DATE ON WHICH THE EVENT UNDERLYING SUCH CLAIM OCCURRED OR IS ALLEGED TO HAVE OCCURRED.
  2. MISCELLANEOUS. This Agreement and any written instructions related to the App which are provided by ShuffleHead constitute the entire agreement between you and ShuffleHead relating to the Application, and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Application or any other subject matter covered by this Agreement. To the extent the terms of any ShuffleHead policies or programs conflict with the terms of this Agreement, the terms of this Agreement shall control. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, such provision shall be modified by the arbitrator to most closely resemble the intent of ShuffleHead and all other provisions of this Agreement shall continue in full force and effect. The failure of ShuffleHead at any time to require performance by you of any provision of this Agreement shall in no way affect ShuffleHead’s right to enforce such provisions, nor shall the waiver by ShuffleHead of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
  1. To the extent possible, if any provision of this Public License is deemed unenforceable, it shall be automatically reformed to the minimum extent necessary to make it enforceable. If the provision cannot be reformed, it shall be severed from this Public License without affecting the enforceability of the remaining terms and conditions.
  2. No term or condition of this Public License will be waived and no failure to comply consented to unless expressly agreed to by the Licensor.