END USER LICENSE AGREEMENT
This End-User License Agreement (“EULA”) is a legal agreement granting You certain rights to use software, documents, and documentation provided by OI Original Ideas, LLC, a Delaware limited liability company (“OI”). You accept this EULA by downloading, installing, or using the software provided by OI. This EULA is binding a legal agreement and it is important that you read and understand its terms before You accept it.
a. This EULA Generally.
OI is the creator and provider of the Socially Twisted game (the “Game”). The Socially Twisted App (the “Software”) is intended to provide You (also defined below) with a way to play the Game on your mobile device, and, if you choose, upload videos to the OI website available at www.sociallytwistedgames.com. In order use the Software you are required to accept the terms and conditions of this EULA. If you do not accept the terms and conditions of this EULA you may not use the Software.
This EULA is a legal agreement between You and OI. You accept this agreement by downloading, installing, or using the Software, which may be downloaded from the Google Play store. By installing, copying, or otherwise using the Software: (i) you are agreeing to be bound by the terms of this EULA; (ii) You are acknowledging that You understand that this EULA is between You and OI, that Google is not a party to this EULA, and that OI and its licensors are solely responsible for the Software and the content thereof; and (iii) that nothing in this EULA is intended to provide for any usage rules that are less restrictive than, or otherwise in conflict with, the Content use rules as defined and set forth in the Google Play Terms of Service and the Google Terms of Service as of the effective date of this EULA, which You have had an opportunity to review prior to agreeing to be bound by this EULA. If You do not agree to the terms of this EULA, do not install or use the Software.
The Software and any related documentation and content are licensed, and not sold, to You for use only under the terms of this EULA. All rights not expressly granted to You in this EULA are reserved. OI may disable or discontinue the Software or any content delivered through the Software at any at any time for any reason, without liability to You.
b. Scope of License. This license granted to You for the Software is limited to a non-transferable license to use the Software and any content delivered through the Software on a portable device (such as a mobile phone or tablet) owned or controlled by You, and as permitted by the Content use rules as defined and set forth in the Google Play Terms of Service and the Google Terms of Service as of the effective date of this EULA (the “Usage Rules”). This license does not allow You to use the Software on any device that You do not own or control. You may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, or sublicense the Software or any content provided through the Software. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software or any content delivered through the Software, any updates, or any part thereof (except as and only to the limited extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of OI and its licensors. If You breach this restriction, You may be subject to prosecution, a civil action, equitable remedies and damages. The terms of this EULA will govern any upgrades provided by OI that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Acceptable Use Policy. You may use the Software only for non-commercial, recreational purposes, and only in conformance with all laws and regulations. Without limiting the foregoing, you agree not to use the Software to violate any privacy right or other right of any person, and not to defame, harass, humiliate or offend any person. You may not use the Software to distribute videos of minors, on any person without their consent, or any obscene, hateful or otherwise inappropriate content. You may never use the Software for any illegal purpose.
d. Consent to Use of Data. You agree that OI may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Software and the content delivered through the Software. OI may use this information to improve its products or to provide services or technologies to You. In the event that Your device is involved in a security breach or attack, OI may use information that is gathered to investigate the breach or attack, and locate any data or information that may have been improperly accessed.
The Software allows you to submit videos or recordings of game play to be viewed by other players in your game. Such content will remain hosted by OI until the game ends, or the content is otherwise deleted by OI in their sole discretion. Content upload to OI may be made available to other players in your game, or may become publicly available on the Internet or through the Software, or otherwise used for any legal purpose by OI. You waive any claim against OI or its licensees (including without limitation claims for copyright infringement, defamation, and/or unauthorized use of name or likeness) in connection with uses of the videos and recordings provided by OI (through the App or otherwise). You warrant and represent that all persons shown in any such videos or recordings likewise waive any claim against OI or its licensees (including without limitation claims for copyright infringement, defamation, and/or unauthorized use of name or likeness) in connection with uses of the videos and recordings by OI. You understand that OI may use these videos or recordings as advertising, marketing or testimonials or for marketing or focus group studies.
Submitting information, text messages, recordings or videos through the Software may result in Internet Service Provider or data usage charges. You are solely responsible for all such charges. By accepting this EULA, You are warranting and representing that you understand the limits and charges on your data plan and will be solely responsible for any charges resulting from your use of the Software.
By submitting information or videos to OI through the Software, You grant an unlimited, royalty-free, worldwide, perpetual, irrevocable, fully-paid-up license and right to use such videos and information for any purpose.
e. Termination. This EULA is effective until terminated by You or OI. Either You or OI may terminate this EULA at will by sending written notice to the other party. Your rights under this EULA will terminate automatically without notice from OI if You fail to comply with any term(s) of this EULA. Upon termination of the license, You shall cease all use of the Software, and destroy all copies, full or partial, of the Software on all mobile devices you own, possess, or control. Your warranties, representations and any indemnification obligations You have under this EULA will survive any termination or expiration for any reason.
f. Services; Third-Party Materials. The Software may enable access to OI’s and third-party services and websites (collectively and individually, “Services”). Use of the Services may require Internet access and that You accept additional terms of service. You are responsible for any data fees or access fees You may incur by using the Software or accessing the Services.
You agree to use the Software and the Services at Your sole risk and that OI will not have any liability whatsoever to You for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the Services, You acknowledge and agree that OI is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. OI does not warrant or endorse, and does not assume and will not have, any liability or responsibility to You or any other person for any third-party Services, Third-Party Materials, or websites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to You. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, or incomplete location data may lead to death, personal injury, or property or environmental damage. Neither OI, nor any of its content providers, guarantee the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Software or the Services.
g. Proprietary Rights. You understand and agree that the Software and Services contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and warrant and represent that You will not use such proprietary content, information, or materials in any way whatsoever except for permitted use of the Software and Services. No portion of the Software or Services may be reproduced in any form or by any means that are not expressly permitted in this EULA or in a separate agreement between You and OI. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Software or the Services, in any manner, and You will not exploit the Software or the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity or by breach or attempted breach of any data, network, or physical security mechanism. You further agree not to use the Software or the Services in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that OI is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive, or illegal messages or transmissions that You may receive as a result of using any of the Software or Services.
h. Languages. In addition, third-party services and Third-Party Materials that may be accessed from, displayed on, or linked to from the Software are not available in all languages or in all countries. OI makes no representation that such Services and materials accessed in connection with the Software or the Services are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with all applicable laws, including but not limited to applicable local laws. OI, and its licensors, reserve the right to change, suspend, remove, or disable access to the Software or any Services at any time without notice. In no event will OI be liable for the removal of, or disabling of access to, any such Services. OI may also impose limits on the use of, or access to, certain Services, in any case and without notice or liability.
i. Parental Consent, Location of Use. The Software is intended for use only by persons over the age of 16, and only in the United States of America. If You are not over the age of 16 or are located outside the United States of America, You may not use the Software or the Services. When You accept this EULA (by installing and using the Software) You warrant and represent that You are legally permitted to use the Software and the Services. If You are between the ages of 17 and 18, You may be required to obtain the consent of Your parent or guardian to use the Software. Such consent may be requested when You create an account.
j. Maintenance and Support. OI does not provide maintenance or support for the Software or any related Services or materials. To the extent OI offers any updates, fixes, or new versions, it is doing so in its sole discretion You and OI agree that neither OI nor Google has any obligation whatsoever to furnish any maintenance or support services with respect to the Software or the Services.
k. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SECURITY, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY OR THROUGH THE SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF SECURITY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
OI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OI OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY IN CONNECTION WITH THE SOFTWARE OR SERVICES. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
l. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL OI BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF OI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL OI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) ARISING FROM OR RELATED TO YOUR USE OF THE SOFTWARE EXCEED THE AMOUNT OF TWO U.S. DOLLARS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
m. You may not use or otherwise export or re-export the Software or Services or any content delivered through the Software or Services except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained or is in use. In particular, but without limitation, the Software may not be exported or re-exported into any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By accepting this EULA, You represent and warrant that (i) You are not located in a country that is subject to U.S. embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You also agree that You will not use the Software or any related content or services for any purposes prohibited by United States law.
n. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
o. This EULA is between You and OI. Google is not a party to this EULA.
(i) To the extent any warranty or warranty-like obligation are created, You may notify Google of any failure of the Software to conform to such warranty or warranty-like obligation and Google may, in its sole discretion, refund the purchase price for the Software or a portion thereof (if any) to You in accordance with its applicable refund policies, but will have no other liability to You under this EULA.
(ii) To the maximum extent permitted by applicable law, neither Google nor OI will have any warranty obligation whatsoever with respect to the Software. To the extent any claims, losses, liabilities, damages, costs or expenses are attributable to any failure to conform to any warranty, they will be the responsibility of OI and not Google.
(iii) OI, and not Google, is solely responsible for addressing any claims by You or any third party relating to the Software or your possession or use of the Software including but not limited to (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
(iv) In the event of any third-party claim that the Software or Your possession and use of the Software infringes that third-party’s intellectual property rights, OI, and not Google, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
(v) While Google is not a party to this EULA, it is a third-party beneficiary of it. Upon Your acceptance of the terms and conditions of this EULA, Google will have the right (and be deemed to have accepted the right) to enforce this EULA against You as a third-party beneficiary.
This EULA is intended to limit OI’s liability to the maximum extent permitted under law, but is not intended to limit OI’s liability to You beyond what is permitted by applicable law.
p. The laws of the State of Delaware, excluding its conflicts of law rules, govern this EULA and your use of the Software, Services, and any content received through the Software or Services. Your use of the Software, and Services may also be subject to other local, state, national, or international laws, court orders, or agreements entered by You with OI or its affiliates.
q. With the exception of injunctive relief (which either party may seek as they deem necessary to avoid irreparable damage or preserve the status quo), any dispute between the parties arising out of or related to this EULA shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration shall be by a panel of one (1) qualified arbitrator experienced in the matters at issue. The American Arbitration Association shall appoint the arbitrator. The Arbitrator must be a retired judge or a working or retired attorney with experience in drafting or litigating online services agreements. All arbitration proceedings shall be held in Tampa, Florida, U.S.A., in a location to be specified by the arbitrator or any other place agreed to collectively by the parties and the arbitrator. Any order or determination of the arbitral tribunal shall be final and binding upon the parties to the arbitration as to matters submitted and may be enforced by either party in any court having jurisdiction over the subject matter or over any of the parties. All parties will pay their own costs and expenses incurred in connection with any such arbitration proceeding, including, but not limited to, reasonable attorneys’, accountants’, and consultants’ fees, experts’ fees, and filing fees regardless of outcome. All fees and expenses charged by the arbitrator or the AAA shall be borne equally by the parties. The parties understand and agree that the exclusive means of resolving any dispute arising in connection with this Agreement shall be arbitration as set forth in this Section q. Neither party may bring a court action or other proceeding (either as an individual or as part of a class) to enforce or interpret this Agreement, the parties having agreed that all such disputes shall be resolved exclusively through arbitration. Notwithstanding the foregoing, or anything else in this Agreement, OI may bring an action in any court of suitable jurisdiction for injunctive or similar equitable relief in the event OI determines that You or Your actions are putting, or have put, OI’s confidential information or intellectual property at risk.
r. Waiver of Class Action and Consolidated Arbitration and Court Action. You and OI expressly intend and agree that: (i) class action and collective action procedures shall not be asserted, and will not apply, in any arbitration under this Agreement; (ii) each will not assert class or collective action claims against the other in arbitration, court, or any other forum; (iii) each shall only submit their own individual claims in arbitration and shall not bring claims against the other in any representative capacity on behalf of any other individual; and (iv) any claims by You will not be joined, consolidated, or heard together with claims of any other current or former licensee or user of the Software or Services or any content accessed by or through the Software.
Notwithstanding anything to the contrary in the applicable rules of arbitration, and the general grant of authority to the arbitrator in paragraph q of the power to determine issues of arbitrability, the arbitrator shall have no jurisdiction or authority to compel any class or collective claim, to consolidate different arbitration proceedings, or to join any other party to an arbitration between OI and You.
Notwithstanding anything to the contrary in the applicable rules of arbitration, and the general grant of authority to the arbitrator in paragraph q of the power to determine issues of arbitrability You and OI agree that, if You or OI choose to challenge the enforceability of the arbitration agreement herein, a court of competent jurisdiction shall have the authority to determine the validity or enforceability of this class and collective action and arbitration waiver, and not the arbitrator. If the class action waiver or prohibition on class arbitration is deemed invalid or unenforceable for any reason, then the entire agreement to arbitrate will be null and void, but the remainder of this Agreement will remain in full force and effect.
t. Any end-user questions, complaints, or claims with respect to the Software should be directed to OI and may be submitted by emailing email@example.com.