Terms of Service and Terms of Use

1. SHIFTY TERMS OF SERVICE – TERMS APPLICABLE TO BUSINESSES

Last Updated: January, 2023

These Shifty Terms of Service (these “Terms of Service”) apply to businesses’ access to and use of the Shifty SaaS Services. These Terms of Service and the online registration and subscription selection form referencing these Terms of Service (the “Registration Form”) (collectively, the “Agreement”), form a binding legal agreement between the corporate entity you represent in agreeing to the Agreement (“Customer”) and (i) Shifty Inc. (together, “Shifty”, “us”, “we” or “our”). Any terms not defined in these Terms of Service have the definition assigned to them in the Registration Form.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CREATING AN ACCOUNT, PROVIDING INFORMATION TO US (BY ANY MEANS, WHETHER IN CORRESPONDENCE, VIA OUR SITE, OR OTHERWISE), BY CLICKING “I ACCEPT,” “SIGN UP FOR FREE,” (OR OTHER SIMILAR LANGUAGE) OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SHIFTY SAAS SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO CUSTOMER’S USE OF AND ACCESS TO THE SHIFTY SAAS SERVICES, IS BOUND BY, THE AGREEMENT, INCLUDING SHIFTY’S PRIVACY POLICY https://www.shiftyinc.com/privacy AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 15(p). If Customer is not eligible, or does not agree to the Terms, then Customer does not have our permission to access or use the Shifty SaaS Services. CUSTOMER’S USE OF THE SHIFTY SAAS SERVICES, AND SHIFTY’S PROVISION OF THE SHIFTY SAAS SERVICES TO CUSTOMER, CONSTITUTES AN AGREEMENT BY SHIFTY AND BY CUSTOMER TO BE BOUND BY THE AGREEMENT.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, Customer agrees that disputes arising under the Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THE AGREEMENT, CUSTOMER AND SHIFTY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Capitalized terms used but not defined in these Terms of Service have the meanings set forth elsewhere in the Agreement.

1. Definitions

  • “Shifty SaaS Services” means the services through which Shifty hosts and makes available the Shifty solution for employee training, scheduling, communications, and management to the extent set forth on the applicable Registration Form. The term “Shifty SaaS Services” includes, to the extent set forth on the applicable Registration Form, the Shifty Software and Support Services.
  • “Shifty Software” means Shifty’s web and mobile application products made available under the names Shifty, Shifty Web App, and Shifty App, and any updates provided as part of the Shifty SaaS Services.
  • “Customer Data” means any data, information, content, records, and files that Customer or any of its Organizational Users load, transmit to or enter into the Shifty SaaS Services, including Personal Data. “Customer Data” includes any data, information, content, records, or files that Shifty is provided access to through an integration with a third party authorized by Organizational Users.
  • “Employment Information” means Customer Data that is employment related data, information, content, records and files including employee roles, employment status, employment duration, POS proficiency, time & attendance, any data used to compute employee engagement scores, and other information specified by Shifty in the Shifty SaaS Services from time to time that is loaded, entered into, transmitted to, or made available to the Shifty SaaS Services.
  • “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations, and adaptations, and “Modify” has a corresponding meaning.
  • “Organizational Users” mean Customer personnel that Customer wishes to have access to and use of the Shifty SaaS Services.
  • “Parties” refer to Shifty and Customer and “Party” refers to each of Shifty and Customer.
  • “Personal Data” means information about an identifiable individual.
  • “Website” means any websites used by Shifty to provide the Shifty SaaS Services, including the websites located at www.shiftyinc.com and platform.shiftyinc.com.

2. Shifty SaaS Services

  • General.  This Agreement was published on the date “Last Updated” above. The Agreement sets forth the terms and conditions under which Shifty makes available the Shifty SaaS Services. These Terms of Service do not, absent the execution of a Registration Form, create any business relationship or impose any obligation on Shifty to provide any license, access, product, or service.
  • Provisioning of the Shifty SaaS Services. Subject to Customer’s compliance with the terms and conditions of the Agreement, Shifty will make the Shifty SaaS Services available to Customer on the terms and conditions set out in the Agreement during the Term (defined below). Customer is responsible for identifying and authenticating all Organizational Users, for ensuring only Organizational Users access and use the Shifty SaaS Services, and for Organizational Users’ compliance with the Agreement.
  • License to the Shifty Software. Subject to Customer’s and its Organizational Users’ compliance with the terms and conditions of the Agreement, Shifty grants to Customer a non-exclusive, non-transferable, and limited license to install, access, operate and use the Shifty Software in accordance with the Agreement during the Term. Customer’s use of the Shifty Software will be subject to any limitations described in the Agreement, in the documentation accompanying the Shifty Software, or as otherwise agreed in writing by the Parties.
  • Limits. Shifty reserves the right to impose reasonable limits on bandwidth and SMS usage as part of the Shifty SaaS Services. Shifty will determine these limits based on usage volumes for normal use of the Shifty SaaS Services for their intended purposes. If Customer exceeds such limits, Shifty may charge Customer reasonable additional fees, suspend access to the Shifty SaaS Services, and throttle Customer’s and Organizational Users’ account until bandwidth consumption is reduced to the reasonable limits.
  • Restrictions of Use. Customer is responsible for the compliance by all Organizational Users with the Agreement, any guidelines and policies published by Shifty from time to time, and the activities of all Organizational Users on the Shifty SaaS Services. Without limiting the generality of any of the foregoing, Customer will not itself, and will not permit others to:
  • reproduce, publicly display, publicly perform, create derivative works of, make modifications to, sublicense, sell, rent, lend, lease, or distribute the Shifty SaaS Services or any intellectual property rights therein or otherwise make the Shifty SaaS Services available to others;
  • use the Shifty SaaS Services to permit timesharing, service bureau use or commercially exploit the Shifty SaaS Services;
  • use or access the Shifty SaaS Services (A) in violation of any applicable law or intellectual property right, (B) in a manner that threatens the security or functionality of the Shifty SaaS Services, or for any purpose or (C) in any manner not expressly permitted in the Agreement;
  • use the Shifty SaaS Services to create, collect, transmit, store, use or process any Customer Data that:
  • contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
  • Customer does not have the lawful right to create, collect, transmit, store, use, or process;
  • violates any applicable laws, or infringes, violates, or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right, or right of publicity);
  • is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive to another’s privacy, hateful, racially, or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, or is otherwise objectionable;
  • contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam”, “chain letters,” “pyramid schemes,” or any other form of solicitation;
  • contains any falsehoods, misrepresentations, creates an impression that Customer knows is incorrect, or any material that could damage or harm minors in any way;
  • modify the Shifty SaaS Services;
  • reverse engineer, de-compile, or disassemble the Shifty SaaS Services;
  • remove or obscure any proprietary notices or labels on the Shifty SaaS Services, including brand, copyright, trademark, and patent or patent pending notices;
  • access or use any Shifty SaaS Services for the purpose of building a similar or competitive product or service;
  • perform any vulnerability, penetration, or similar testing of the Shifty SaaS Services; or
  • collect or store Personal Data about any individual not subject to the Agreement or Shifty Terms of Use.
  • Suspension of Access; Scheduled Downtime; Modifications.  Shifty may from time to time and in its discretion and without notice, without limiting any of its other rights or remedies at law or in equity, under the Agreement:
  • suspend Customer’s or Organizational Users’ access to or use of the Shifty SaaS Services:
  • for scheduled maintenance;
  • due to a Force Majeure (as defined in Section 15(j))
  • if Shifty believes in good faith that Customer or any Organizational User has violated any provision of the Agreement;
  • to prevent interference with the availability of the Shifty SaaS Services;
  • to address any emergency security concerns; or
  • if required to do so by a regulatory body or as a result of a change in applicable law.
  • Shifty reserves the right to make any Modifications or discontinue all or any portion of the Shifty SaaS Services at any time (including by limiting or discontinuing certain features of the Shifty SaaS Service), temporarily or permanently, without notice to Customer. Shifty will have no liability for any change to the Shifty SaaS Services, including any paid-for functionalities of the Shifty SaaS Services, or any suspension or termination of Customer’s access to or use of the Shifty SaaS Services.
  • Subcontracting. Shifty may engage third parties to provide the Shifty SaaS Services.

3. Data; Intellectual Property

  • Except as expressly set forth in the Agreement, nothing in the Agreement assigns or grants to Shifty or any third party any right, title or interest including any intellectual property rights in or to Customer Data. Customer grants to Shifty a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, use, process, store, collect, disclose, and transmit Customer Data during the Term to: (i) provide the Shifty SaaS Services, including sharing Customer Data with its third-party sub-contractors in connection with such third-party subcontractors providing the Shifty SaaS Services or other services to Shifty; (ii) improve and enhance the Shifty SaaS Services and for other Shifty offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or Customer (such data, information and materials, the “Aggregated Data”). Shifty and/or its third party service providers may use Aggregated Data for any purpose and without restriction or obligation to Customer or any third party.
  • Shifty may facilitate and Organizational Users may create and maintain individual accounts to use the Shifty SaaS Services apart from Customer User Accounts (defined below) (each an“Individual Account”). Customer hereby grants Shifty a nonexclusive, worldwide, royalty-free, sublicensable (to Organizational Users), irrevocable, fully paid-up right to access, use, process, store, collect, disclose, and transmit Customer Data that constitutes Employment Information to maintain such Individual Accounts.
  • Shifty or its licensors retain all ownership and intellectual property rights in and to: (i) the Shifty SaaS Services; (ii) anything developed or delivered by or on behalf of Shifty under the Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
  • All rights not expressly granted by Shifty to Customer under the Agreement are reserved.

4. Trademark License

Subject to the terms and conditions of the Agreement, each Party hereby grants to the other Party a non-exclusive, royalty-free, fully paid-up, non-transferable, non-sublicensable, and revocable license to use and display its trademarks, service marks, tradenames, or logos, in accordance with such Party’s branding guidelines, in the other Party’s advertising, marketing, and promotional materials solely to identify the other Party as a client or vendor.

5. Feedback

Shifty may use any suggestions, comments or other feedback relating to any aspect of the Websites, Shifty SaaS Services, or the Shifty Software (“Feedback”), in or to improve the Website, the Shifty SaaS Services or in any other Shifty products or services (collectively, “Shifty Offerings”). Accordingly, Customer agrees that:

  • Shifty is not subject to any confidentiality obligations in respect to Feedback;
  • Feedback is not confidential or proprietary information of Customer or any third party and Customer has all of the necessary rights to disclose the Feedback to Shifty;
  • Shifty (including all of its successors and assigns and any successors and assigns of any of the Shifty Offerings) may freely use, reproduce, publicize, license, distribute, sublicense, and otherwise commercialize Feedback in any Shifty Offerings; and
  • Customer is not entitled to receive any compensation or reimbursement of any kind from Shifty or any of the other users of the Website or Shifty SaaS Services in respect of the Feedback.

6. Privacy

Customer understands that Personal Data, including the Personal Data of Organizational Users, will be treated in accordance with Shifty’s privacy policy located at https://www.shiftyinc.com/privacy.

7. Customer User Account; Responsibility for Organizational Users

  • Accounts. Upon Customer’s request, Shifty will issue one or more accounts (each, a “Customer User Account”) to Customer for use by one or more Organizational Users and designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the Shifty SaaS Services (such account, an “Administrator Account”). Customer must provide Shifty with the identity of the individual who will act as the administrator of the Customer User Account.  Customer will ensure that Organizational Users only use the Shifty SaaS Services through a Customer User Account. Customer will not allow any Organizational Users to share a Customer User Account with any other person.
  • Authentication. Customer is responsible for identifying and authenticating all Organizational Users and for Organizational Users’ use of the Shifty SaaS Services in compliance with the Agreement.
  • Unauthorized Use. Customer will promptly notify Shifty of any actual or suspected unauthorized use of the Shifty SaaS Services. Shifty reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that such Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the Shifty SaaS Services, including Organizational Users, are contractually bound to Shifty’s end user Terms of Use.
  • User Content Generally. Certain features of the Shifty SaaS Services may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Shifty SaaS Services, including messages, reviews, photos, video, or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, “User Content” may hold in the User Content that Customer Posts to the Shifty SaaS Services, subject to the licenses granted in these Terms of Service.
  • Limited License Grant to Shifty. By Posting User Content to or via the Shifty SaaS Services, Customer hereby grants Shifty a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms of Service, and distribute User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed.
  • Customer Must Have Rights to the Content Customer Posts; User Content Representations and Warranties. Customer must not Post User Content if Customer is not the owner of or not fully authorized to grant rights in all of the elements of that User Content. Shifty disclaims any and all liability in connection with User Content. Customer is solely responsible for User Content and the consequences of providing User Content via the Shifty SaaS Services. By providing User Content via the Shifty SaaS Services, Customer affirm, represent, and warrant to us that:
  • Customer is the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Shifty and users of the Shifty SaaS Services to use and distribute User Content as necessary to exercise the licenses granted by Customer in this Section, in the manner contemplated by Shifty, the Shifty SaaS Services, and these Terms of Service;
  • User Content, and the Posting or other use of User Content as contemplated by these Terms of Service, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause Shifty to violate any law or regulation or require Shifty to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and
  • User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
  • User Content Disclaimer. We are under no obligation to edit or control User Content that Customer or other users Post and will not be in any way responsible or liable for User Content. Shifty may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms of Service, is alleged to violate the rights of third parties, or is otherwise objectionable. If notified by a user or content owner that User Content allegedly does not conform to these Terms of Service, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Shifty does not permit infringing activities on the Shifty SaaS Services.
  • Monitoring Content. Shifty reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Shifty SaaS Services for operational and other purposes. If at any time Shifty chooses to monitor the content, then Shifty still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Shifty may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Shifty SaaS Services without any liability to the user who Posted such User Content to the Shifty SaaS Services or to any other users of the Shifty SaaS Services.

8. Support

Customer will generally have access to Shifty’s technical support services (“Support Services”) from 9:00 AM EST to 5:00 PM EST on Monday – Saturday via emailing support@shiftyinc.com. Shifty reserves the right to modify the availability of Support Services from time-to-time in the regular course of business.

9. Updates to the Shifty Software; Third Party Content

  • General Updates to Shifty Software. Shifty may, in its sole discretion, include the provision of updates, upgrades, bug fixes, patches, and other error corrections as Shifty makes generally available to other licensees of the Shifty Software (collectively, the “Updates”). All Updates will be deemed to be “Shifty Software” and subject to the terms and conditions of the Agreement. Customer is required to accept all Updates made by or on behalf of Shifty to the Shifty Software. If Customer does not wish to install the Updates, it should not license the Shifty Software. Shifty may require that Customer accept and install Updates to the Shifty Software as a condition to the licenses granted in the Agreement. Except for any automatic Updates provided by Shifty pursuant to Section 9(c) below, Shifty will provide Customer with prior notice of such Updates. Upon such notice, Customer will, through its Administrator Accounts, install such Updates promptly following receipt of such Update from Shifty.
  • Automatic Updates to Shifty Software. The Shifty Software may automatically communicate with Shifty’s servers or the Shifty SaaS Services to permit the Shifty Software to perform in accordance with its specifications, to record and collect Customer Data and to receive Updates. The Updates may be automatically installed without providing any additional notice or receiving any additional consent. Customer consents to these automatic Updates.
  • Third-Party Material. The Shifty Software may provide links or access to third-party content, websites, services, or systems. Shifty does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under the control of Shifty, and if Customer chooses to access any such content, websites, services, or systems Customer does so entirely at its own risk. Customer acknowledges that it may be required by to accept terms and conditions applicable to third-party content, websites, services, or systems, that such terms may supersede the terms in the Agreement with respect to the use of such third-party content, websites, services or systems, and Customer agrees to accept and comply with any such terms and conditions.

10. Fees and Payment

  • Fees. Customer will pay to Shifty the applicable fees described in the applicable Registration Form (the“Fees”) during the Term in accordance with the payment terms set out herein and in the applicable Registration Form.
  • Change to Fees. Shifty reserves the right to change the Fees and institute new charges upon providing not less than 30 days prior notice to Customer. Such notice may be provided at any time by posting the changes to www.shiftyinc.com or through the Shifty SaaS Services. Without limiting the foregoing, Shifty may increase the Fees annually, without notice, for inflation based on changes to the CPI Index as compared to CPI Index for immediately preceding calendar year. The term “CPI Index” means the Consumer Price Index for the United States as published in the U.S. Bureau of Labor Statistics’ CPI Inflation Calculator or a similar replacement price index should that Inflation Calculator be discontinued in its present form.
  • Invoicing. All Fees are due and payable in advance. Shifty will prepare and send to Customer, at the then-current contact information on file with Shifty, an invoice for any Fees that are due. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts in advance on either a monthly or annual basis and Fees are non-refundable. For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the Website, and Shifty will invoice or charge Customer on a recurring basis.
  • Disputed Invoices or Charges. If Customer believes Shifty has charged or invoiced Customer incorrectly, Customer must contact Shifty no later than 45 days after having been charged by Shifty or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.
  • Late Payment. Customer may not withhold or setoff any amounts due under the Agreement. Shifty reserves the right to suspend Customer’s access to the Shifty SaaS Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of 1.5% compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
  • Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees, and similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the Agreement other than taxes based on the net income or profits of Shifty. If Shifty has the legal obligation to pay or collect taxes for which Customer is responsible, Shifty will invoice Customer and Customer will pay that amount unless Customer provide Shifty with a valid tax exemption certificate authorized by the appropriate taxing authority.
  • Suspension. Any suspension of the Shifty SaaS Services by Shifty pursuant to the terms of the Agreement will not excuse Customer from its obligation to make payments under the Agreement.
  • Third-party Marketplaces. Customer agrees and acknowledges that in the event Customer pays for Shifty SaaS Services through third-party marketplaces (e.g., Clover or ADP), (i) Customer shall also be subject to the terms and conditions set forth by those parties; (ii) Shifty will not provide refunds or credits in any circumstances; and (iii) Customer is solely responsible for managing its payments to Shifty through the third-party marketplace and Shifty will not be liable for Customer’s use of those marketplaces or the enforcement of such third parties’ policies.

11. Confidential Information

  • Definitions. For the purposes of the Agreement, a Party receiving Confidential Information (as defined below) will be the“Recipient”, the Party disclosing such information will be the “Discloser.” “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into the Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Data: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
  • Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under the Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than the Agreement, and to such other Recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
  • Exceptions to Confidentiality. Notwithstanding Section 12(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Shifty as Recipient, to potential assignees, acquirers or successors of Shifty if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Shifty.

12. Warranty; Disclaimer; Indemnity

  • Customer Warranty. Customer represents and warrants to, and covenants with Shifty that, Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Organizational User), obtained all applicable third-party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Shifty to provide the Shifty SaaS Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Data, including by or to Shifty and to or from all applicable third parties.
  • No Advice. As part of the Shifty SaaS Services, Shifty may offer notifications to Organizational Users related to compliance with labor laws (for example, calculations of overtime, violating split shift). This tool is for information purposes and does not constitute legal or professional advice. Customer expressly agrees that Customer is solely liable for compliance with all applicable labor laws and regulations.
  • GENERAL DISCLAIMER. SHIFTY DOES NOT WARRANT THAT THE SHIFTY SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Shifty SAAS SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THE SHIFTY SAAS SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SHIFTY TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SHIFTY SAAS SERVICES OR SHIFTY OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SHIFTY SAAS SERVICES WILL CREATE ANY WARRANTY REGARDING SHIFTY OR THE SHIFTY SAAS SERVICES THAT IS NOT EXPRESSLY STATED IN THE AGREEMENT. SHIFTY IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SHIFTY SAAS SERVICES AND CUSTOMER DEALING WITH ANY OTHER USER OF ANY SHIFTY SAAS SERVICES. CUSTOMER USES ANY PORTION OF THE SERVICE AT CUSTOMER’S OWN DISCRETION AND RISK AND SHIFTY IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SHIFTY SAAS SERVICE) OR ANY LOSS OF DATA. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHIFTY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SHIFTY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SHIFTY SAAS SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
  • Indemnity. Customer will defend, indemnify and hold harmless Shifty, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third-party (including Organizational Users) claims (including damages, recoveries, deficiencies, interest, penalties, and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under the Agreement; (iii) use of the Shifty SaaS Services (or any part thereof) by Customer or any Organizational User in combination with any third-party software, application or service; or (iv) use of the Shifty SaaS Services in relation to compliance with applicable labor laws. Customer will fully cooperate with Shifty in the defense of any claim defended by Customer pursuant to its indemnification obligations under the Agreement and will not settle any such claim without the prior written consent of Shifty.

13. Limitation of Liabilities

The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

  • AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SHIFTY IN CONNECTION WITH OR UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SHIFTY SERVICES IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL SHIFTY’S THIRD-PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.
  • TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SHIFTY BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (i) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (ii) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (iii) BUSINESS INTERRUPTION; (iv) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (v) PERSONAL INJURY OR DEATH; OR (vi) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
  • EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14. Term and Termination

  • Term. Unless terminated earlier in accordance with the Agreement, the Agreement is effective as of the effective date specified in the Registration Form and will remain in effect for the Initial Term and any Renewal Terms specified in the Registration Form (collectively, the “Term”).
  • Termination for Cause. Either Party may, in addition to other relief, terminate the Agreement if the other Party commits a material breach of the Agreement and fails within 15 calendar days after receipt of notice of such breach to correct such material breach. In addition, Shifty may terminate the Agreement immediately upon notice to Customer in the event Customer is in violation of Section 2 of the Agreement.
  • Effect of Termination. Upon termination of the Agreement, Customer will immediately cease accessing or using the Shifty SaaS Services.
  • Survival. The following Sections, together with any other provision of the Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 3 (Data; Intellectual Property), Section 4 (Trademark License), Section 6 (Privacy), Section 10 (Fees and Payment), Section 11 (Confidential Information), Section 12 (Warranty; Disclaimer; Indemnity), Section 13 (Limitation of Liabilities), Section 14(d) (Survival), and Section 15 (General Provisions).

15. General Provisions

  • Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the other. Notices must be sent:
  • if to Shifty, to the following address:

    Shifty, Inc.
  • 187 S. Old Woodward Ave, Suite 210, Birmingham, MI 48009
  • (248) 780-2552
  • Email: support@shiftyinc.com

  • if to Customer, to the current postal or email address that Shifty has on file with respect to Customer.
  • Shifty may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Shifty current at all times during the Term.

    Assignment.
  • Customer will not assign the Agreement to any third party without Shifty’s prior written consent. Shifty may assign the Agreement or any rights under the Agreement to any third party without Customer’s consent. The Agreement will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
  • Applicable Law and Jurisdiction.
  • You agree that the laws of the state of Michigan, without regard to conflicts of laws provisions will govern this Agreement and any dispute that may arise between you and Company or its affiliates.
  • The parties agree and hereby submit to the exclusive jurisdiction and venue of the appropriate state and federal courts located closest to Oakland County, Michigan with respect to such matters.
  • Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Site must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
  • Arbitration.
  • Except as otherwise permitted under this Agreement, any dispute or controversy arising out of this Agreement, any amendment hereof, the breach hereof, and/or any other claims arising out of Customer’s use of the Software or Shifty’s provision of the Services, which dispute would be resolved by judicial or administrative proceedings, shall be determined and settled by arbitration in Oakland County, in accordance with the rules of the American Arbitration Association through a single arbitrator.  If the parties cannot agree on a single arbitrator, the parties shall each select an arbitrator that will work together to select the single arbitrator.  The costs for arbitration shall be split equally between the parties, notwithstanding anything to the contrary in the rules of the American Arbitration Association.  Any award rendered therein shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction thereof.  If this arbitration provision is held to be invalid, void, or unenforceable by a court of competent jurisdiction, to the fullest extent permitted by law, CUSTOMER AND SHIFTY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR ACTION RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT.  
  • No Class Actions. CUSTOMER AND SHIFTY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Shifty agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
  • Modifications to this Arbitration Provision. If Shifty makes any substantive change to this arbitration provision, Customer may reject the change by sending us written notice within 30 days of the change to Shifty’ address for Notice of Arbitration, in which case Customer’s account with Shifty will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Customer rejected will survive.
  • Enforceability. If Section 15(d)(x) or the entirety of this Section 15(d) is found to be unenforceable, or if Shifty receives an Opt-Out Notice from Customer, then the entirety of this Section 15(d) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15(d) will govern any action arising out of or related to these Terms of Service.
  • Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Shifty SaaS Services.
  • Consent to Electronic Communications. By using the Shifty SaaS Services, Customer consents to receiving certain electronic communications from Shifty as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that Shifty sends to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
  • No Support. Shifty is under no obligation to provide support for the Shifty SaaS Services. In instances where we may offer support, the support will be subject to published policies.
  • Construction. Except as otherwise provided in the Agreement, the parties’ rights and remedies under the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
  • Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”).
  • Severability. Any provision of the Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal, or unenforceable will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect.
  • Waiver. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by Company must be in writing and signed by an authorized representative of Company.
  • Additional Terms. Customer’s use of the Shifty SaaS Services is subject to all additional terms, policies, rules, or guidelines applicable to the Shifty SaaS Services or certain features of the Shifty SaaS Services that Shifty may post on or link to from the Shifty SaaS Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, the Agreement.
  • Independent Contractors. Shifty's relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
  • Entire Agreement. This Agreement constitutes the entire agreement between you and Company and governs the terms and conditions of your use of the Site, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Company with respect to this Site. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when you use the Site.
  • Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of the Agreement and, unless otherwise expressly specified in the Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, SHIFTY MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN“AMENDMENT”), BY: (i) GIVING CUSTOMER NOTICE OF SUCH AMENDMENT; OR (ii) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY Shifty, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
  • English Language. It is the express wish of the parties that the Agreement and all related documents be drawn up in English.
  • International Use. The Shifty SaaS Services is intended for Customers located within the United States. Shifty makes no representation that the Shifty SaaS Services is appropriate or available for use outside of the United States. Access to the Shifty SaaS Services from countries or territories or by individuals where such access is illegal is prohibited.
  • Notice Regarding Apple. This Section only applies to the extent Customer is using our mobile application on an iOS device. Customer acknowledges that these Terms of Service are between Customer and Shifty only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Shifty SaaS Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Shifty SaaS Services. If the Shifty SaaS Services fails to conform to any applicable warranty, Customer may notify Apple, and Apple will refund any applicable purchase price for the mobile application to Customer. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Shifty SaaS Services. Apple is not responsible for addressing any claims by Customer or any third party relating to the Shifty SaaS Services or Customer’s possession and/or use of the Shifty SaaS Services, including: (i) product liability claims; (ii) any claim that the Shifty SaaS Services fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Shifty SaaS Services and/or Customer’s possession and use of the Shifty SaaS Services infringe a third party’s intellectual property rights. Customer agrees to comply with any applicable third-party terms when using the Shifty SaaS Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Service, and upon Customer’s acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third-party beneficiary of these Terms of Service. Customer hereby represents and warrants that: (i) Customer is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.

End of Terms of Service

SHIFTY TERMS OF USE – TERMS APPLICABLE TO USERS

Last updated: January, 2023

The following terms of use (the “Terms of Use”) govern your access to and use of the software and services we make available that reference these terms including our mobile applications and our websites at www.shiftyinc.com along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Services”). These Terms of Use form an agreement between you and (i) Shifty Inc. (together, “Shifty”. “us”, “we”, “our”). The term “you” refers to the person browsing, installing, downloading, accessing, or otherwise using the Services (“use” or “using” in these Terms of Use will mean any of the foregoing).

You may be an individual user of the Services or may be using the services on behalf of an organization or other third party that we refer to in these Terms of Use as “Customer”. In the event you are using the Services on behalf of a Customer, you acknowledge that such Customer has separately agreed to Terms of Service or has entered into an agreement (each, the “Contract”) that permits Customer to access, and provide its personnel with access, to the Services (each individual granted access to the Services, including you, is an “Organizational User”). The Contract contains our commitment to deliver the Services to Customer, who may then obtain user accounts for each individual Organizational User.

BY USING THE SERVICES, YOU: (A) REPRESENT AND WARRANT THAT (I) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS OR IF YOU ARE UNDER THE AGE OF MAJORITY HAVE THE AGREEMENT FROM YOUR LEGAL GUARDIAN TO ENTER INTO THIS AGREEMENT AND (II) ALL INFORMATION SUPPLIED BY YOU TO US THROUGH THE SERVICES IS TRUE, ACCURATE, CURRENT, AND COMPLETE AND (B) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 1.

1. Changes to these Terms of Use and the Services

  • Except where prohibited by applicable law, we reserve the right to change these Terms of Use at any time by posting a new version in the Services. It is your obligation to monitor the Services for any such changes. Your continued access to or use of the Services after any changes to these Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Terms of Use regularly.
  • We reserve the right to change the Services at any time, without notice. We may, at our discretion, suspend your access to or use of the Services or any component thereof: (i) for scheduled maintenance; (ii) if you violate any provision of these Terms of Use; (iii) to prevent interference with the availability of the Services; or (iv) to address any emergency security concerns. We reserve the right to remove, edit, limit, or block access to any data, information, records, and files that you load, transmit to, or enter into, or that we collect from, the Services (collectively, “User Data”) at any time, and we have no obligation to display or review your User Data.

2. Other Shifty Agreements; Additional Terms

These Terms of Use do not alter in any way the terms or conditions of any other agreement that may apply to your use of the Services, including the Contract (the“Other Shifty Agreements”). If there is a conflict or inconsistency between the Other Shifty Agreements and these Terms of Use, then the provisions of the Other Shifty Agreements will govern to the extent of such conflict or inconsistency.

3. Privacy

  • Please review our current Privacy Policy, available at https://www.shiftyinc.com/privacy, which contains important information about our practices in collecting, storing, using, and disclosing information about identifiable individuals (“Personal Information”), and which is hereby incorporated into and forms a part of these Terms of Use.
  • You represent and warrant to us that any data, information, records, and files that you load, transmit to, or enter into the Services will only contain Personal Information in respect of which you have provided all necessary notices and disclosures, obtained all applicable third-party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to make available the Services.

4. Customer Data

When you submit content or information to the Services on behalf of a Customer (“Customer Data”), you acknowledge and agree that Customer retains all of its rights, title, and interest, including all intellectual property rights, in and to Customer Data, and the Contract provides Customer with many choices and control over that Customer Data. You also acknowledge, agree and consent to us using Customer Data in order to provide the Services, including sharing Customer Data with our third-party sub-contractors.

5. Feedback

Shifty may use any suggestions, comments or other feedback relating to any aspect of the Services (“Feedback”), in or to improve Shifty Offerings. Accordingly, you agree that:

  • Feedback is not your confidential or proprietary information or that of any third party and you have all of the necessary rights to disclose the Feedback to Shifty;
  • Shifty (including all of its successors and assigns and any successors and assigns of any of the Shifty Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Shifty Offerings; and
  • you are not entitled to receive any compensation or reimbursement of any kind from Shifty or any of the other users of the Services in respect of the Feedback.

6. Ownership of the Services

All rights, title, and interest, including intellectual property rights, in the Services and all other materials provided by us hereunder, and any update, adaptation, translation, customization or derivative work thereof, will remain with us (or our third-party suppliers, if applicable). The Services and all materials provided by us hereunder are made available or licensed and not “sold” to you. All rights not expressly granted to you in these Terms of Use are reserved.

7. User Account for the Services

To access certain features of the Services, you may be required to successfully sign up for a user account using the available interfaces of the Services or third-party single sign on services (the “User ID”). You will keep your User ID secure and will not share or grant access to your User ID with anyone else. We reserve the right to disable any User ID issued to you at any time in our sole discretion. If we disable access to a User ID issued to you, you may be prevented from accessing the Services. Certain information will be shared with Customer and Customer may be able to change and update your user account settings.

8. Your Responsibilities

You agree to:

  • comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, privacy any export control laws;
  • upload and disseminate only Customer Data which Customer owns all required rights under law and do so consistent with applicable law;
  • use reasonable efforts to prevent unauthorized access to or use of the Services;
  • keep User IDs and all other login information confidential;
  • monitor and control all activity conducted through your account in connection with the Services; and
  • promptly notify us and Customer if you become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving your account, including any loss, theft, or unauthorized disclosure or use of a User ID or account.

9. No Unlawful or Prohibited Use

You will not use the Services in violation of these Terms of Use or of any applicable law. You will not, without our prior written permission, use the Services for any purpose other than to access and use the software and services we make available through the Services. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:

  • send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Services any data, information, pictures, videos, audio or other materials or content that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) you do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (iii) is false, intentionally misleading, or impersonates any other person; (iv) contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam”, “chain letters,” “pyramid schemes,” or any other form of solicitation; (v) is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive to another’s privacy, hateful, racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, or is otherwise objectionable; (vi) is harmful to minors in any way or targeted at minors; (vii) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (viii) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability;
  • share, transfer or otherwise provide access to an account designated for you to another person;
  • disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Services (e.g., a denial-of-service attack);
  • attempt to gain unauthorized access to the Services;
  • use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code;
  • use the Services for the purpose of building a similar or competitive product or service;
  • use the Services other than for the benefit of Customer that has entered into an agreement to access the Services, and who has granted you a right of access; or
  • authorize, permit, enable, induce, or encourage any third party to do the above.

10. Third Party Content, Websites or Services

The Services may provide links or access to third party content, websites, or services. Likewise, we may allow you to access the Services from third party systems. Shifty does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under Shifty’ control, and if you choose to access any such content, websites, or services, or to access the Services from such systems, you do so entirely at your own risk. You acknowledge that you may be required to accept terms of use applicable to third party content, websites, services, or systems and agree to accept and comply with any such terms of use. You further acknowledge that by providing access to third party systems that Shifty may import data from those systems into Shifty and such data will be considered to be part of Customer Data and third-party systems may have access and copy Customer Data and the use of such data is outside the control of Shifty.

11. Malicious Code and Security

The downloading and viewing of content are done at your own risk. We do not guarantee or warrant that the Services is compatible with your computer system or that the Services, or any links from the Services, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs, or connections of and to your computer system that may be necessary as a result of your use of the Services.

You are prohibited from attempting to circumvent and from violating the security of the Services including without limitation: (a) accessing content that is not intended for you; (b) attempting to breach or breaching the Services security or authentication measures; (c) restricting, disrupting or disabling service to the Services users, hosts, servers or networks by any means, or (d) otherwise attempting to interfere with the proper working of the Services, including but not limited to by introducing any material that is malicious or technologically harmful.

12. Communications Not Confidential

We do not guarantee the confidentiality of any communications made by you through the Services. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Services.

13. Disclaimer

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.

YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, RELIABILITY, CURRENCY, TIMELINESS, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SERVICES IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

14. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE SERVICES OR THESE TERMS OF USE.

FOR ANY OTHER DAMAGES, OR TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES EXCEED $100 USD. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

ANY REMEDIES AVAILABLE WITH REGARD TO THE SERVICES ARE AS SET OUT IN THE CONTRACT WITH CUSTOMER.

15. Indemnification

You will defend, indemnify, and hold harmless us, our affiliates and service providers, and each of their and our respective officers, directors, employees, agents, and any licensees, successors and assigns from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with:

  • your breach of any provision of these Terms of Use or any documents referenced herein;
  • your violation of any law or the rights of a third party (including intellectual property rights); or
  • your use or the use by any third party using your User ID of the Services.

16. Geographical Restrictions

Shifty makes no representation that the Services is available for use in locations outside the United States or all locations within the United States. This site is not intended for use in any jurisdiction where its use is not permitted. If you access the site from outside the United States, you do so at your own risk and you are responsible for compliance with local laws of your jurisdiction.

17. General Provisions

  • Notices. Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the other. Notices must be sent:
  • if to Shifty, to the following address:

    Shifty, Inc.
  • 187 S. Old Woodward Ave, Suite 210, Birmingham, MI 48009
  • (248) 780-2552
  • Email: support@shiftyinc.com
  • if to You, to the current postal or email address that Shifty has on file with respect to You.
  • Shifty may change its contact information by posting the new contact information on the Website or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with Shifty current at all times during the Term.
  • Applicable Law and Jurisdiction:
  • You agree that the laws of the state of Michigan, without regard to conflicts of laws provisions will govern this Agreement and any dispute that may arise between you and Company or its affiliates.
  • The parties agree and hereby submit to the exclusive jurisdiction and venue of the appropriate state and federal courts located closest to Oakland County, Michigan with respect to such matters.
  • Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Site must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
  •  
  • Arbitration:
  • Except as otherwise permitted under this Agreement, any dispute or controversy arising out of this Agreement, any amendment hereof, the breach hereof, and/or any other claims arising out of Customer’s use of the Software or Shifty’s provision of the Services, which dispute would be resolved by judicial or administrative proceedings, shall be determined and settled by arbitration in Oakland County, in accordance with the rules of the American Arbitration Association through a single arbitrator.  If the parties cannot agree on a single arbitrator, the parties shall each select an arbitrator that will work together to select the single arbitrator.  The costs for arbitration shall be split equally between the parties, notwithstanding anything to the contrary in the rules of the American Arbitration Association.  Any award rendered therein shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction thereof.  If this arbitration provision is held to be invalid, void, or unenforceable by a court of competent jurisdiction, to the fullest extent permitted by law, CUSTOMER AND SHIFTY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR ACTION RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT.  
  • No Class Actions. CUSTOMER AND SHIFTY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Shifty agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
  • Modifications to this Arbitration Provision. If Shifty makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Shifty’ address for Notice of Arbitration, in which case your account with Shifty will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
  • Enforceability. If Section 17(c)(x) or the entirety of this Section 18(c) is found to be unenforceable, or if Shifty receives an Opt-Out Notice from you, then the entirety of this Section 18(c) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18(c) will govern any action arising out of or related to these Terms of Use.
  • No Support. Shifty is under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
  • Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”).
  • Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Shifty may post on or link to from the Service (the“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Use.
  • Entire Agreement. These Terms of Use constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect to the Services. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
  • Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  • Severable. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.
  • Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any assignment in violation of this Section will be void. The terms of these Terms of Use will be binding upon permitted assignees. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees. Shifty may engage third parties to provide the Services.
  • English Language. It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English.
  • International Use. The Shifty SaaS Services is intended for Customers located within the United States. Shifty makes no representation that the Shifty SaaS Services is appropriate or available for use outside of the United States. Access to the Shifty SaaS Services from countries or territories or by individuals where such access is illegal is prohibited.
  • Notice Regarding Apple. This Section only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms of Use are between you and Shifty only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Shifty SaaS Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Shifty SaaS Services. If the Shifty SaaS Services fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Shifty SaaS Services. Apple is not responsible for addressing any claims by you or any third party relating to the Shifty SaaS Services or your possession and/or use of the Shifty SaaS Services, including: (i) product liability claims; (ii) any claim that the Shifty SaaS Services fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Shifty SaaS Services and/or your possession and use of the Shifty SaaS Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Shifty SaaS Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Use, and upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary of these Terms of Use. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government 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.

21. Contact

If you have any questions or comments regarding these Terms of Use, please contact us via email at support@shiftyinc.com.

End of Terms of Use

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