The following capitalized terms shall have the following meanings whenever used in this Agreement.
Our acceptable use policy sets per-organization usage limits and was designed to prevent misuse and unduly burdensome use of the platform. These limits are put in place for our cloud offering, and do not apply to the open source model, which is free indefinitely.
All monthly limits are per organization, including its sub-organizations.
Use of the System. During the Term and provided that this Agreement has not been terminated by either party, and in consideration of the payment of the System Fees, Customer may access and use the System pursuant and subject to: (a) the terms of any outstanding Customer Order, including such features and functions as the Customer Order provides and any limitations on the number of Users, data volume and capacity as the Customer Order imposes; and (b) AUP and Shuffle’s other policies posted on its Website at shuffler.io, as such policies may be updated from time to time.
Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
System Revisions. Shuffle may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to a Customer Order, Customer may within 30 days of notice of the revision terminate such Customer Order, without cause, or terminate this Agreement without cause if such Customer Order is the only one outstanding.
Use of Customer Data. Unless it receives Customer’s prior written consent, Shuffle: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the System, to provide Cloud Services to Customer and to improve customer experience on the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Shuffle’s other customers, except subcontractors or partners that are subject to a reasonable nondisclosure agreement or confidentiality duties. Notwithstanding the foregoing, Shuffle may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Shuffle shall give Customer prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Shuffle offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Data Accuracy. Shuffle shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
Data Deletion. Shuffle may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, or if the Customer has scheduled such data to be deleted.
Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Shuffle's computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), General Data Protection Regulation (GDPR), etc. (the "Excluded Data Laws"))(such Customer Data collectively, “Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) SHUFFLE HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) SHUFFLE’S SYSTEMS, INCLUDING THE SYSTEM, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
Fees. Customer shall pay Shuffle the System fees for the access to and use of the System (“System Fees”) in accordance with the schedule of System Fees which are posted on the Website for the relevant System Service from time to time, unless otherwise agreed by means of an executed Customer Order, and the fees for optional Customization Services (“Customization Fees”), if applicable, as specified in the Service Agreement executed by Customer and Shuffle under the optional Customization Services Addendum (System Fees and Customization Fees together, the “Fees”) during each Term. System Fees are dependent on the number of app executions “invocations”, bandwidth used, and are further based on the length of the Term, data volume and such other capacity limitations as may be stated in the schedule of System Fees on the Website or in the Customer Form, if applicable.
Payment of Fees. Customer authorizes Shuffle to charge an amount equal to the amount of the System Fees as provided in Section 3.1 hereof on a monthly or yearly basis (unless the relevant Customer Order provides otherwise) and, if stated by the Services Agreement, the amount of the Customization Fees (on such dates as the Service Agreement provides), and any additional amounts as permitted by this Agreement, to the credit card and/or bank account specified in the Customer Order in advance of provision of services to Customer by means of automatic debit or credit card charge for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Shuffle to charge the Fees every month, quarter or other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. Shuffle will not be required to refund the Fees under any circumstances, except if a significant breach of contract has occured. In this case, see the next point (3).
Breach of service. In the case of a contractual breach by Shuffle, Shuffle may provide the customer with the remaining payments provided by the customer for the period (month or year), and also stop all services for the customer, if the contractual breach can be verified. The outstanding cost will count from the day of initial contact by the customer to Shuffle about the potential breach.
Taxes. All Fees are exclusive of, and Customer is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of Shuffle. Shuffle may add any such taxes to the applicable Fees.
Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s affiliates, to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Shuffle may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Shuffle may have. Neither this Agreement nor the AUP requires that Shuffle take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Shuffle is free to take any such action it sees fit.
Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Shuffle immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws and regulations, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
Users and Customers of the Shuffle platform, whether Cloud or Open Source, are prohibited from providing direct sales of the Shuffle platform, whether Cloud or Open Source, without explicit permission in a written agreement with Shuffle. Users and Customers are further not allowed to provide paid engagements for support, automation help or other services herein, without an explicit written agreement with Shuffle AS.
Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
IP Rights to the System. Shuffle retains all right, title, and interest in and to the System, including without limitation all software, system software and applications used to provide the System, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the System.. This Agreement is an agreement for services and does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer understands and agrees that the System and its components are protected by copyright and other laws.
Feedback. Shuffle has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Shuffle, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Shuffle’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Shuffle’s products or services.)
“Confidential Information” refers to the following items Shuffle discloses to Customer: (a) any document Shuffle marks “Confidential”; (b) any information Shuffle orally designates as “Confidential” at the time of disclosure, provided Shuffle confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, the Customization Services Addendum, Statements of Work and any communications between Shuffle and Customer in relation to this Agreement or the Customization Services Addendum, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Shuffle, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.
In certain scenarios, a customer may require confidential information belonging to, or within the perimiters of Shuffle's datacenters. On a case-by-case basis, Shuffle will decide whether to comply with the requirements from said customer to provide such information. Shuffle will never share information about another customer, but may share your own historical information if necessary.
From Shuffle. Shuffle represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Shuffle’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Shuffle. In the event of a breach of the warranty in this Section 8.1, Shuffle, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Cloud Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Shuffle’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Warranty Disclaimers. CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SHUFFLE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) SHUFFLE DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) SHUFFLE DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Shuffle and each of the Shuffle Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Shuffle’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Shuffle will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Shuffle Associates” are Shuffle’s officers, partners, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO SHUFFLE IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO SHUFFLE WITH RESPECT TO SHUFFLE’S BREACH OF SHUFFLE’S OBLIGATIONS UNDER THIS AGREEMENT.
Exclusion of Consequential Damages. IN NO EVENT WILL SHUFFLE BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SHUFFLE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article, Shuffle’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Shuffle’s liability limits and other rights set forth in this Article apply likewise to Shuffle’s affiliates, licensors, suppliers, partners, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the initial term selected by the Customer in the online registration process or as specified in a Customer Order, if any. Following its expiration, the Term will renew for successive terms equal to the initial term specified in the Customer Order, unless either party refuses such renewal by written notice to the other party 30 or more days before the renewal date.
Termination for Cause. Either party may terminate this Agreement or any Customer Order if the other party: (i) fails to cure any material breach (including, without limitation, Customer's failure to pay the Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
Effects of Termination. Upon termination of this Agreement, Shuffle shall discontinue Customer’s access to the System and Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay the Fees (unless the termination is by Customer for cause); (b) Sections: IP & Feedback, Confidential Information, Warranty Disclaimers, Indemnification, Limitation of Liability and Publicity; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. Data about the customer will be kept by Shuffle for one (1) year after termination. We do further offer instant permanent data removal upon request.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Shuffle employee or contractor will be an employee of Customer.
Notices. Shuffle may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Shuffle, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Shuffle’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the Kingdom of Norway, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the County of San Francisco, California.
Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Shuffle or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
Acceptance. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF THROUGH SHUFFLE’S ONLINE REGISTRATION PROCESS OR BY MEANS OF A CUSTOMER ORDER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. Customer further acknowledges that this Agreement does not have to be signed in order to be binding. Customer will have indicated its assent to the terms of the Agreement by clicking on the "Accepted and Agreed to" (or similar button) that is presented to Customer at the time of its opening of an online account with Shuffle and submitting an order for the Cloud Services through Shuffle’s online registration process on the Website or by executing and transmitting to Shuffle a Customer Order.