Last updated: May 2017
This agreement (“Agreement”) applies to all SHIFTMobility® Applications (Mobile and Web) and Web Sites (collectively, the “Service”) and to Trials, Paid Subscriptions, Pilot, Beta. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Service. You may not access the services if you are our direct competitor. You may not access services for the purposes of monitoring their availability, performance, functionality, and content comparisons or for any other benchmarking or competitive purposes. You must obtain written consent from SHIFTMobility. By using any offerings from SHIFTMobility, you accept this Agreement and certify that you are above the age of majority in your jurisdiction. Please note that we may change the terms of this Agreement from time to time. If we do this, we will post the changes on this page and will indicate the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. By continuing to use any portion of the Service after such changes become effective, you accept the Agreement, as modified. Additional terms and conditions may apply to some services offered on the Service, and these may be found at the place where the relevant product and services are offered.
SHIFTMobility offers platforms that helps connect third party marketplace service providers or retail vendors (“Vendors”) and customers (“Customers”). SHIFTMobility is not a party to any agreement between Vendors and Customers. All purchases and sales are solely between Vendors and Customers and SHIFTMobility will have no liability for any interactions between Vendors and Customers. SHIFTMobility disclaims all liability arising from or related to any such agreements. Notwithstanding the foregoing, SHIFTMobility serves as the limited authorized agent of the Vendor for the purpose of accepting payments from Customers on behalf of Vendors and is responsible for transmitting such payments to the Vendor, and each Vendor hereby appoints SHIFTMobility as the Vendor’s limited agent solely for the purpose of collecting payments made by customers on behalf of the Vendor. While SHIFTMobility may help facilitate the resolution of disputes in its sole discretion, SHIFTMobility has no control over and does not guarantee the existence, quality, safety, or legality of any advertised items; the truth or accuracy of any listings; the ability of Vendor to sell items; the ability of Customers to pay for items; or that a Customer or Vendor will actually complete a transaction or return an item. SHIFTMobility does not warrant or guarantee that a listing will sell or that a purchase will meet a user’s requirements.
PLEASE READ This Agreement CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A BINDING AND MANDATORY CUSTOMER ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN Individual BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS and limits the remedies available to you in the event of certain disputes.
Obligations of Vendors: By listing an item on the Service, you agree to pay any applicable fees, that you have all necessary rights and authority to offer for sale the item offered, to assume full responsibility for the content of the listing and item offered, and, unless otherwise stated, to sell the item to a Customer after the Customer’s offer meets the requirements of your listing. SHIFTMobility reserves the right to remove your listing for any reason.
Obligations of Customers: By making a commitment to buy an item on the Service, you acknowledge that you have read and understand the item listing and that you are committing to buy the listed item from the Vendor. If you make a commitment to buy an item or your offer is otherwise accepted by the Vendor, you enter into a legally binding contract with the Vendor and are obligated to purchase the item.
The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and our Web Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). By using the Mobile Services, you agree that we may communicate with you regarding SHIFTMobility and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
- USE OF THE SERVICE
You certify that the information you provide on the Service is accurate and complete. You will be responsible for the confidentiality of your password and for all statements made and acts or omissions that occur on your account. If you believe someone has used your password or account without your authorization, you must notify SHIFTMobility immediately. There maybe usage limitations enforced on a time to time basis. Such limitations are communicated in advance by email or in application or other modes of communication.
If You install or enable a Non-SHIFTMobility Application for use with a Service, You grant Us permission to allow the provider of that Non-SHIFTMobility Application to access Your Data as required for the interoperation of that Non-SHIFTMobility Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-SHIFTMobility Application.
The Services may contain features designed to interoperate with Non-SHIFTMobility Applications. To use such features, You may be required to obtain access to Non-SHIFTMobility Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-SHIFTMobility Applications. If the provider of a Non-SHIFTMobility Application ceases to make the Non- SHIFTMobility Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
Our account may also be restricted or terminated for any reason, at our sole discretion. We may also change, restrict access to, suspend, or discontinue the Service, or any portion of the Service, at any time without notice. SHIFTMobility and its affiliates have no liability to you for any loss or damage arising from your failure to comply with this section or for any content on the Service that you find offensive, indecent, or objectionable. If you are under the age of majority in your jurisdiction, you may use the Service only with involvement of a parent or guardian. You are prohibited from: Violating or attempting to violate the security of the Service; Using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; Using the Service to violate any applicable local, state, national or international law, or any regulations having the force of law; or Using or attempting to use any engine, software, tool, agent or other device or mechanism (except the search mechanisms provided by SHIFTMobility or other third party web browsers) to navigate or search the Service.
Any data you enter into the service or customizations that you may perform during free trial will be lost permanently unless you convert the service on a paid subscription. Any data or customization you perform during free trial is not exportable or transferrable. Trial services are provided “as-is” without any warranty and comes with no technical support services.
- CONTENT SUBMISSION & THIRD PARTY SITES
SHIFTMobility allows businesses and users to submit and share comments, feedback, submissions, suggestions, questions, reviews, images, information, data, text, graphics, messages and other content through the Service (“Content”). Text Content should be written in English. By submitting Content, you warrant that you are 18 years of age or older, you are the sole author and owner of the Content and use of any Content you supply will not violate any term of this Agreement and will not cause injury to any person or entity. If you make any submission to the Service, you automatically grant, or warrant that the owner of such content has expressly granted SHIFTMobility, a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, upload, store, use and display the Content in connection with the Services. SHIFTMobility may sublicense its rights through multiple tiers of sub-licenses. You further represent and warrant that you will not submit the following Content: Content that is false, inaccurate, or misleading; Content that violates any local, state, federal, or international laws; Content that infringes on the rights of others, including patents, copyrights, trademarks, trade secrets, publicity or privacy rights; Content that is unlawful, obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by SHIFTMobility in its sole discretion; Content that violates any policy posted on the Service, or interferes with the use of the Service by others. Although SHIFTMobility cannot monitor all Content, you understand that SHIFTMobility shall have the right, but not the obligation, to monitor the Content to determine compliance with this Agreement and any other operating rules that may be established by SHIFTMobility from time to time. SHIFTMobility shall have the right, in its sole discretion, to edit, move, delete, or refuse to post any Content submitted, to or posted on, the Service for any reason, including violation of this Agreement, whether for legal or other reasons. Notwithstanding this right of ours, you are solely responsible for any Content you submit and you agree to indemnify SHIFTMobility and its affiliates for all claims resulting from any Content you submit.
Please note that references on the Service to any names, marks, products, or services of third parties, or links to third-party sites or information are not an endorsement, sponsorship, or recommendation of the third party, its information, products, or services. SHIFTMobility is not responsible for the content of any third party linked site or any link contained in a linked site. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that SHIFTMobility is not liable for any loss or claim that you may have against any such third party. Your use of a third-party site linked from the Service is at your own risk and will be governed by such third party’s terms and policies.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to SHIFTMobility are non-confidential and SHIFTMobility will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge that SHIFTMobility may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on SHIFTMobility’s servers on your behalf. You agree that SHIFTMobility has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that SHIFTMobility reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that SHIFTMobility reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
- PRICING, ORDER AND BILLING
You agree to pay all fees when due in accordance with the terms set forth in the Service. You agree that the subscription you sign up is continuous until cancellation/termination of the service is requested. You understand that we will communicate any change in subscription fees in advance. You may be required to select a payment plan and provide SHIFTMobility information regarding your credit card or other payment instrument. All billing information provided for transaction processing must be truthful and accurate. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur within 60 days of the change. Providing any untruthful or inaccurate information constitutes a breach of this Agreement and may result in order cancellation. Prior to accepting an order we may also request additional information from you. You understand and pre-authorize that collection of fees will be charged for any declined or returned payments. Such non-sufficient fees will be the maximum amount allowed by law and will include applicable taxes.
We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. If we cancel a Customer’s order after the Customer’s credit card (or other payment account) has been charged, we will issue a credit to the credit card (or other applicable payment account) in the amount of the charge. We will contact Customers if all or any portion of their order is canceled or if additional information is required to accept the order. SHIFTMobility may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to the Customer; however, the Customer’s card issuer may hold this amount for a short period. The card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that there are sufficient funds to complete the transaction. By confirming the purchase at the end of the checkout process, Customer agrees to accept and pay for the item(s). SHIFTMobility reserves the right to limit the quantity of items purchased per person, per household or per order for any reason. These restrictions may apply to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will the notify Customer should such limits be applied. SHIFTMobility also reserves the right, at our sole discretion, to prohibit using the Service to sell to dealers or resellers. For purposes of this Agreement, reselling shall be defined as purchasing or intending to purchase any product(s) using the Service for the purpose of engaging in a commercial sale of that same product(s) with a third party.
Refunds and cancellations are subject to the cancellation policy of the Vendor contained in the applicable listing. SHIFTMobility’s ability to refund fees will depend upon the terms of the applicable cancellation policy. Vendors are responsible for any chargebacks by Guests that have stayed at their properties. If a chargeback is initiated by a Customer that results in a deduction of fees received by SHIFTMobility, SHIFTMobility will charge the Vendor for the amount of the deducted fees, and Vendor agrees to pay such fees.
- INFORMATION PROVIDED ON THE SERVICE
SHIFTMobility and Vendors post a variety of material on the Service including without limitation, merchandise information, product descriptions, reviews, comments, warranty information, and their retail store information (collectively, “Materials”). The Materials that appear on the Service are for educational and informational purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time. Before you act on information you have found on the SHIFTMobility Sites, you should confirm any facts that are important to your decision. SHIFTMobility and its information providers make no warranty as to the reliability, accuracy, timeliness, usefulness, or completeness of the information on the Service and under no circumstances will SHIFTMobility be liable in any way for any Materials of any third parties (including users), including, but not limited to, for any errors or omissions in Materials. SHIFTMobility is not responsible for, and cannot guarantee the performance of, goods and services provided by our advertisers or others to whose sites we link. Product information contained on the Service may be different from information contained on the product and service materials due to service provider, distributor, and manufacturer changes. If you find a product or service is not as described, your sole remedy is to request return or refund for unused product or service (excluding products and services that are not eligible for return). SHIFTMobility, ITS AFFILIATES, AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE MATERIALS LOCATED ON ANY OF THE SERVICE.
In certain Services, we allow you access to information we have licensed from MOTOR Information Systems (the “MOTOR Information”) and by accessing such information; you agree to comply with the following terms and conditions:
- License Grant. MOTOR hereby grants to you a nontransferable, non-exclusive, limited license to access and use the MOTOR Information contained within the Product on a vehicle-by-vehicle look-up basis. 2. Restrictions on Use of MOTOR Information. You agree that you shall not, and shall not permit any third party, to directly or indirectly (i) alter or copy in any form or medium all or any part of the MOTOR Information (except for data located on an individual, vehicle by vehicle, lookup basis), nor make any MOTOR Information part of any electronic retrieval system; (ii) create any derivative work from, or adaptation of, the MOTOR Information; (iii) lease, license, sell, or otherwise publish, communicate, distribute or display to any third party in any form or medium all or any part of the MOTOR Information; (iv) create any publications, in electronic, printed or other format, based in whole or in part on data from the MOTOR Information, alone or in combination with any other data; (v) download the MOTOR Information (other than the data obtained on a vehicle-by-vehicle look-up basis) or transmit the MOTOR Information electronically by any means; (vi) remove any product identification, copyright, trademark or other notice from the MOTOR Information or documentation; or (vii) reverse engineer, reverse assemble, or reverse compile the MOTOR Information.
- Ownership/Confidentiality. You agree that the MOTOR Information is the confidential information of MOTOR, and that MOTOR owns or is the Subscriber of all rights in the MOTOR Information, including without limitation all copyright and other proprietary rights. You agree to keep confidential and use your best efforts to prevent and protect the MOTOR Information from unauthorized disclosure or use.
To access VoomBox Suite of applications, you acknowledge that you are a member of Auto Care Organization.
- INTELLECTUAL PROPERTY
All copyrights, trademarks, trade dress, other intellectual property and materials contained on the Service, including page headers, images, text, illustrations, formats, logos, designs, icons, photographs, programs, video clips or downloads, written and other materials (collectively, the “IP”) are owned, controlled or licensed by SHIFTMobility, one of its affiliates or by third parties who have licensed their materials to SHIFTMobility and are protected by U.S. and international intellectual property laws, except that the foregoing does not apply to your own content that you legally upload to the Service. You may access, view, download, and print the IP and all other the materials displayed on the Service for your personal, non-commercial use only; provided, however, that you (1) retain all copyright, trademark or other proprietary designations contained on all IP; (2) do not modify or alter the IP in any way; and (3) do not provide or make available the IP to any third party in a commercial manner. No license, right, title, or interest in any materials or software is transferred to you as a result of your use of the Service or your accessing, viewing, downloading, or printing of the IP. Any use of the Service or IP other than as specifically authorized herein is strictly prohibited. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, frame, scrape, rent, lease, loan, reverse engineer, reverse assemble or otherwise attempt to discover any source code, assign, sublicense, sell or participate in any sale of or exploit in any way, in whole or in part, any of the IP, the Service or any technology and software underlying the Service or distributed in connection therewith (the “Software”). All Software is the property of SHIFTMobility or its suppliers and protected by U.S. and international copyright laws and may only be used as part of the Service. The Service may be used only as a resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the IP on the Service is strictly prohibited. Any rights not expressly granted herein are reserved and no license or right to use any trademark of SHIFTMobility or any third party is granted to you in connection with the Service.
You agree to defend, indemnify, and hold harmless SHIFTMobility and its affiliates from and against any and all claims, damages, costs, and expenses, including attorneys’ fees, arising from or related to your use of the Service or any breach by you of this Agreement. SHIFTMobility reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting SHIFTMobility’s defense of such matter.
This Agreement is effective unless and until terminated by either you or SHIFTMobility. You may terminate this Agreement at any time by giving 30 day notification via email sent to firstname.lastname@example.org – provided that you discontinue any further use of the Service. SHIFTMobility also may terminate this Agreement at any time and may do so immediately without notice, and accordingly deny you access to the Service, for any reason, including without limitation if in SHIFTMobility’s sole discretion you fail to comply with any term or provision of this Agreement. Upon any termination of this Agreement by either you or SHIFTMobility, you must promptly destroy all materials downloaded or otherwise obtained from the Service, as well as all copies of such materials, whether made under this Agreement or otherwise. The following sections shall survive any termination of this Agreement: “Use of the Service,” “Content Submission,” “Order Acceptance and Billing,” “Pricing Information,” “Information Provided on the Service,” “Export Policy,” “Intellectual Property,” “Indemnification,” “Termination,” “Disclaimer,” “Limitation of Liability,” “Privacy,” and “General.”
THIS SERVICE IS PROVIDED BY SHIFTMobility ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHIFTMobility MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SHIFTMobility DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SHIFTMobility DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY MERCHANDISE OFFERED ON THE SERVICE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICE, THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF THE ITEM. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL SHIFTMobility OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SHIFTMobility HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT WILL SHIFTMobility BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, SHIFMOBILITY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Copyright Complaints: SHIFTMobility respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify SHIFTMobility of your infringement claim in accordance with the procedure set forth below.
SHIFTMobility will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to SHIFTMobility’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
303 Twin Dolphin Drive, Suite 600, Redwood City, CA 94065
To be effective, the notification must be in writing and contain the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; a description of the copyrighted work or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent: your physical or electronic signature; identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, SHIFTMobility will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, SHIFTMobility has adopted a policy of terminating, in appropriate circumstances and at SHIFTMobility’s sole discretion, users who are deemed to be repeat infringers. SHIFTMobility may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- EXPORT POLICY
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Company on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- SOCIAL NETWORKING SERVICES
- APPLE or ANDROID ENABLED SOFTWARE APPLICATIONS
SHIFTMobility offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”) at AppStore or Android at Android Marketplace, among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”, “Android-Enabled Software), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
SHIFTMobility and you acknowledge that this Agreement are concluded between SHIFTMobility and you only, and not with Apple, and that as between SHIFTMobility and Apple, SHIFTMobility, not Apple or Google, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software or Android-Enabled Software in, or otherwise be in conflict with, the App Store or Android Marketplace Terms of Service.
Your license to use the Apple-Enabled Software or Android-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product or Android-Enabled Software on an Android Product, that you own or control, as permitted by the Usage Rules set forth in the App Store or Android Market Place Terms of Service.
Apple or Google has no obligation whatsoever to provide any maintenance or support services with respect to the Apple or Android Enabled Software.
Apple or Google is not responsible for any product warranties, whether express or implied by law. Apple or Google will have no warranty obligation whatsoever with respect to the Apple or Android Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be SHIFTMobility’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
SHIFTMobility and you acknowledge that SHIFTMobility, not Apple or Google, is responsible for addressing any claims of you or any third party relating to the Apple or Android Enabled Software or your possession and/or use of that Apple or Android Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple or Android Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple or Android Enabled Software or the end-user’s possession and use of that Apple or Android Enabled Software infringes that third party’s intellectual property rights, as between SHIFTMobility and Apple or Google, SHIFTMobility, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You 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.
If you have any questions, complaints or claims with respect to the Apple or Android Enabled Software, they should be directed to SHIFTMobility as follows: firstname.lastname@example.org; or Client Services Group 1065 E. Hillsdale Blvd, Suite 112, Foster City, CA 94404
SHIFTMobility and you acknowledge and agree that Apple, Google and their subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple and Android Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple or Android Enabled Software as a third party beneficiary thereof.
- BETA PRODUCT/SERVICE CONDITIONS
If you are participating in a pilot or beta program, the following terms are applicable during the course of such a program.
WHEREAS, shiftMobility is willing to supply the product/service for this program, any related materials and documentation made available by SHIFTMobility (collectively, the “Evaluation Materials”) to Licensee subject to the terms and conditions of this Agreement; WHEREAS, Licensee desires to test and evaluate the Evaluation Materials in accordance with the terms herein; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereby agree as follows:
- Use of Evaluation Materials; No Support. Subject to the terms of this Agreement, SHIFTMobility grants to Licensee a personal, non-sublicensable, nonexclusive license to use the Evaluation Materials, solely in accordance with the documentation or instructions supplied by SHIFTMobility and solely for Licensee’s internal testing and evaluation purposes during the term of this Agreement. SHIFTMobility shall at all times retain all title to and ownership of the Evaluation Materials and all copies thereof. Licensee agrees to use the Evaluation Materials only in the ordinary course of its evaluation, and Licensee shall not (and shall not permit any third party to): (a) reproduce or modify the Evaluation Materials or any portion thereof, (b) rent, sell, lease or otherwise transfer the Evaluation Materials or any part thereof or use it for the benefit of a third party, or (c) reverse assemble, reverse compile or reverse engineer the Evaluation Materials, or otherwise attempt to discover any Evaluation Materials source code or underlying Confidential Information (as that term is defined below).This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Evaluation Materials (collectively, “Support”), but any such Support that may be made available by shiftMobility (in its sole discretion) shall become part of the Evaluation Materials and subject to this Agreement.
- Confidentiality;Licensee acknowledges that, in the course of using the Evaluation Materials and performing its activities under this Agreement, it may obtain information relating to the Evaluation Materials and/or SHIFTMobility (“Confidential Information”). Such Confidential Information shall belong solely to SHIFTMobility and includes, but is not limited to, the existence of the Evaluation Materials, related features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. With respect to Confidential Information: (a) Licensee shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information without the prior written consent of SHIFTMobility unless such Confidential Information becomes part of the public domain without breach of this Agreement by Licensee, its officers, directors, employees or agents; (b) Licensee agrees to take reasonable measures to maintain the Confidential Information and Evaluation Materials in confidence; (c) Licensee will disclose the Evaluation Materials and Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees have agreed in writing to be bound by terms no less restrictive than the provisions of this Agreement; and (e) Licensee will not remove or export the Evaluation Materials or any Confidential Information or any direct product thereof in violation of any applicable law or regulation. Further, if Licensee provides or communicates to SHIFTMobility any feedback, discoveries, ideas, concepts or suggestions relevant to the Evaluation Materials (or improvements, enhancements or modifications thereto) or SHIFTMobility’s business, technology or Confidential Information (“Feedback”), Licensee hereby assigns to shiftMobility all right, title and interest in and to such Feedback and all intellectual property rights therein (and hereby waives any associated moral rights or the like).
- FeedbackLicensee agrees to provide feedback during the beta testing period which may disclose: (1) which portions of the Evaluation Materials have been used, (2) the nature of that use, (3) the extent or amount of use, (4) all errors or difficulties discovered, and (5) the characteristic conditions and symptoms of the errors and difficulties, in sufficient detail to allow SHIFTMobility to recreate the errors and difficulties itself.
- Publicity. After termination of the Beta Period (defined below), Licensee will consider participating in marketing activities for the Evaluation Materials, which shall be mutually agreed upon by the parties, including creating a case study and/or press release based upon Licensee’s use of the Evaluation Materials, and SHIFTMobility may use Licensee’s company name and logo on SHIFTMobility’s website and marketing materials in order to identify Licensee as a customer of shiftMobility (subject to any reasonable trademark guidelines provided by Licensee).
- Warranty Disclaimer.The parties acknowledge that the Evaluation Materials are provided “AS IS” without warranty of any kind. SHIFTMOBILITY DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION MATERIALS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Remedies and Damages.SHIFTMOBILITY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY LICENSEE HEREUNDER, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SHIFTMOBILITY SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL
- General. Neither party shall have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business.This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties. Licensee acknowledges and agrees that due to the unique nature of shiftMobility’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with shiftMobility resulting in irreparable harm to shiftMobility, and therefore, that upon any such breach or threat thereof, shiftMobility shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
- GOVERNING LAW.
This Agreement shall be governed by the law of the State of California without respect to its conflicts of laws principles. We each agree to submit to the personal jurisdiction of a state or federal court located in Foster City, California, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 18.
- DISPUTE RESOLUTION AND ARBITRATION.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SHIFTMOBILITY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1 Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and SHIFTMobility agree (a) to waive your and SHIFTMobility’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Services and Platform, resolved in a court, and (b) to waive your and SHIFTMobility’s respective rights to a jury trial. Instead, you and SHIFTMobility agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2 No Class Arbitrations, Class Actions or Representative Actions
You and SHIFTMobility agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and SHIFTMobility and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and SHIFTMobility agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and SHIFTMobility agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
18.3 Federal Arbitration Act
You and SHIFTMobility agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
18.4 Notice; Informal Dispute Resolution
You and SHIFTMobility agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to SHIFTMobility shall be sent by certified mail or courier to SHIFTMobility, Inc., Attn: Legal, 1065 E. Hillsdale Blvd, Suite 112, Foster City, CA 94404. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your SHIFTMobility account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and SHIFTMobility cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or SHIFTMobility may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND SHIFTMOBILITY AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR SHIFTMOBILITY WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND SHIFTMOBILITY WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and SHIFTMobility agree that (a) any arbitration will occur in Foster City, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
18.6 Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules. discovery in the arbitration shall be limited to one set of interrogatories, one set of request for admissions, and one set of request for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
18.7 Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
18.9 Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION 18 BY WRITING TO: SHIFTMOBILITY, INC., RE: OPT-OUT, 1065 E. Hillsdale Blvd, Suite 112, Foster City, CA 94404. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 17.
- GENERAL CONDITIONS
This Agreement represents the complete agreement between the parties and supersedes all prior agreements and representations between them. Headings used in this Agreement are for reference purposes only and in no way define or limit the scope of the section. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other terms of this Agreement shall remain in full force and effect. The failure of SHIFTMobility to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit SHIFTMobility’s rights with respect to such breach or any subsequent breaches.