TERMS AND CONDITIONS OF USE
Last Updated on July 26, 2017
One of the principal offerings of ShiftPixy, Inc. (“ShiftPixy”) is a technology platform involving mobile and other applications (“Applications”), websites, content, and related services (the “Platform”) wherein individuals seeking shift work employment (“Shift Workers”) can request and secure short-term work opportunities (“Shifts”) with businesses (“Job Providers”) having a need for Shift Workers to fill immediate and anticipated Shifts. These Terms and Conditions of Use (“Terms”) apply to both Shift Workers and to Job Providers who make use of the Platform (collectively, “Users” who are referred to throughout these Terms in the second person as “you”) and accordingly govern your access to and use of the Platform.
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE PLATFORM.
1. Contractual Relationships
Your access to and use of the Platform constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and ShiftPixy. In the case of the Job Provider, these Terms are in addition to and made a part of the terms of any separately negotiated agreement with ShiftPixy, and your use of the Platform to secure Shift Workers triggers the application of the Terms and Conditions applicable to Shift Staffing Services in your agreement with ShiftPixy or its subsidiary, Shift Human Capital Management Inc. In the case of a Shift Worker, these Terms are in addition to and made a part of any separately negotiated employment agreement with ShiftPixy, or its subsidiary, Shift Human Capital Management Inc., and any Shift related agreement with any applicable Job Provider for which you provide services.
In addition, in the case of a Shift Worker, any Shift offered to you through the Platform is not mandated by ShiftPixy to be performed by you; rather, the Shift is offered to you as an opportunity to perform additional services in employment at the site of a particular Job Provider in exchange for compensation associated with performing the Shift. If you do not desire to earn additional compensation by performing a particular Shift, or you are otherwise unavailable, unwilling or unable to perform a particular Shift, then you should neither accept that Shift or otherwise indicate a willingness to accept that Shift. However, by accepting a Shift, (a) you are indicating that you are ready, willing and able to perform the Shift, (b) you are then contractually obligated to perform the Shift, and (c) your failure to perform a Shift that you have accepted could significantly diminish your rating as a Shift Worker in the Platform, thereby negatively impacting your ability to secure additional Shift work opportunities in the future.
If you do not agree to these Terms, you may not access or use the Platform. Except as noted above, these Terms expressly supersede prior agreements or arrangements with you regarding the subject matter of these Terms. In the event of a conflict of the terms of any separate agreement with these Terms with respect to the applicable Platform, the terms providing the greatest protection to ShiftPixy shall be deemed to apply.
ShiftPixy may immediately terminate these Terms or your access to the Platform, or generally cease offering or deny access to the Platform or any portion thereof, at any time for any reason.
In addition, ShiftPixy may amend the Terms related to the Platform from time to time. Amendments will be effective upon ShiftPixy’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Platform after such posting constitutes your consent to be bound by the Terms, as amended.
In these Terms, the words “including” and “include” mean “including, but not limited to.”
Your License to Use the Platform.
Subject to your compliance with these Terms, ShiftPixy grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device(s) solely in connection with your use of the Platform; and (ii) access and use any content, information and related materials that may be made available through the Platform, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by ShiftPixy and ShiftPixy’s licensors.
You may not:
a. Harm or interfere with the operation of the Platform or ShiftPixy; in particular, you may not—
- remove any copyright, trademark or other proprietary notices from any portion of the Platform;
- reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform except as expressly permitted by ShiftPixy;
- decompile, reverse engineer or disassemble the Platform except as may be permitted by applicable law;
- link to, mirror or frame any portion of the Platform;
- cause or launch any programs, scripts, robots, spiders, or other processes for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform;
- attempt to gain unauthorized access to or impair any aspect of the Platform or its related systems or networks;
- upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
- hack or interfere with the Platform, its servers or any connected networks;
b. Harm or exploit any other person or entity or otherwise interfere with their rights; in particular, you may not—
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including ShiftPixy or Job Provider staff or Shift Workers, or use information learned from the Platform or during the performance of Shifts to otherwise defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any other person or entity within or outside of the Platform;
- publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information;
- use any part of the Platform for any purpose, including, but not limited to posting or completing a Shift, in violation of local, state, national, or international law;
- post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
- advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the Shift services offered through the Platform;
- upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party;
- upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
- upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
c. Abuse the use of the Platform; in particular, you may not—
- conduct or forward surveys, contests, pyramid schemes, or chain letters;
- impersonate another person or a user or allow any other person or entity to use your identification to post or view comments;
- post the same Shift repeatedly (“Spamming”), the parties acknowledging that Spamming is strictly prohibited;
- download any file posted by another user that a user knows, or reasonably should know, cannot be legally distributed through the Platform;
- imply or state that any statements you make are endorsed by ShiftPixy, without the prior written consent of ShiftPixy;
- adapt, alter, license, sublicense or translate the Platform for your own personal or commercial use;
- use the Platform to solicit for any other business, website or service, or otherwise contact users for employment, contracting or any purpose not related to use of the Platform as set forth herein;
- use the Platform to collect usernames and or/email addresses of users by electronic or other means;
- use the Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes;
- attempt to circumvent the payments system, the Shift Work or subscription fee arrangement in anyway including, but not limited to, processing payments or arrangement Shift Work outside of the Platform, including using inaccurate information or otherwise in a fraudulent manner;
- register under different usernames or identities, after your Account has been suspended or terminated or register under multiple usernames or identities;
- cause any third party to engage in the restricted activities above.
Provision of the Platform.
You acknowledge that portions of the Platform may be made available under ShiftPixy’s various brands or in connection with certain of ShiftPixy’s subsidiaries and affiliates, including “ShiftableHR.”
Third Party Services and Content.
The Platform, including the Applications, and all rights therein are and shall remain ShiftPixy’s property, or the property of ShiftPixy’s licensors, as applicable. Neither these Terms nor your use of the Applications or Platform convey or grant to you any rights: (i) in or related to the Applications or the Platform except for the limited license granted above; or (ii) to use or reference in any manner ShiftPixy’s company names, logos, product and service names, trademarks or the Application or Platform marks or those of ShiftPixy’s licensors.
3. Your Use of the Platform
Shift Worker User Accounts.
In order to use most aspects of the Platform, you must register for and maintain an active personal user Platform account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to ShiftPixy certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Platform or ShiftPixy’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by ShiftPixy in writing, you may possess only one Account.
If you are an employee of ShiftPixy, and your services have, as a “Worksite Employee,” been assigned to one of ShiftPixy’s contracted clients, then you are deemed to be “Inside the ShiftPixy Ecosystem,” and you will have no obligation to pay any subscription fees in order to maintain access to the Platform and your Account. If you are not a Worksite Employee, then you are deemed to be “Outside the ShiftPixy Ecosystem, and you will have to pay the required subscription fees in order to maintain access to the Platform and your Account.
Job Provider User Accounts.
In order to use most aspects of the Platform, you must register for and maintain an Account. You must assign at least one “Designated Representative” of your organization to maintain and access the Account. Each Designated Representative must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18). You agree to maintain accurate, complete, and up-to-date information in your Account through your Designated Representatives. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Platform or ShiftPixy’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to require your Designated Representative(s) to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by ShiftPixy in writing, you may possess only one Account. You may not assign your Account to any other person or entity.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account. You agree to comply with all applicable laws when using the Platform, and you may only use the Platform for lawful purposes (e.g., no contracts for the performance of illegal activity). You will not in your use of the Platform cause nuisance, annoyance, inconvenience, or property damage, to any party associated with the transactions described herein or any other party. In certain instances you may be asked to provide proof of identity to access or use the Platform, and you agree that you may be denied access to or use of the Platform if you refuse to provide proof of identity.
You may not assign or otherwise transfer your Shifts to any other person or entity.
You may not allow persons under the age of 18 to receive Shifts.
In the case of a Shift Worker, by creating an Account, you hereby affirmatively consent to the use by ShiftPixy, the Platform and Job Providers of your mobile phone number for calls and text messages as part of the normal business operation of your use of the Platform and your securing of Shifts. You may opt-out of receiving text (SMS) messages from ShiftPixy at any time by requesting removal via email at [email protected] You acknowledge that opting out of receiving text (SMS) messages may substantially impact your use of the Platform and your securing of Shifts.
In the case of a Job Provider, by creating an Account, you hereby affirmatively consent to the use by ShiftPixy, the Platform and Shift Workers of your mobile phone number for calls and text messages as part of the normal business operation of your use of the Platform and your securing of Shift Workers. You may opt-out of receiving text (SMS) messages from ShiftPixy at any time by requesting removal via email at [email protected] You acknowledge that opting out of receiving text (SMS) messages may substantially impact your use of the Platform and your securing of Shift Workers.
ShiftPixy may, in ShiftPixy’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Platform and/or a Job Provider’s services, subject to any additional terms that ShiftPixy establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by ShiftPixy; (iii) may be disabled by ShiftPixy at any time for any reason without liability to ShiftPixy; (iv) may only be used pursuant to the specific terms that ShiftPixy establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. ShiftPixy reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that ShiftPixy determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the Platform from a wireless-enabled device. You are responsible for such data and messaging rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Platform and Applications and any updates thereto. ShiftPixy does not guarantee that the Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
User Generated Content.
Allowing User Generated Content
ShiftPixy may, in ShiftPixy’s sole discretion, permit you from time to time, in connection with your use of the Platform, to submit, upload, publish or otherwise make available to ShiftPixy through the Platform textual, audio, and/or visual content and information, including commentary and feedback about you and related to the Platform, Shift Workers, and Job Providers (collectively, “Your Information”). The information and materials described in this Section, as provided by each User, may collectively be referred to herein as “User Generated Content.”
ShiftPixy Not Responsible for User Generated Content
You are solely responsible for Your Information, and ShiftPixy and the Platform function merely as a passive conduit for your online distribution and publication of Your Information. User Generated Content represents the opinions of Users and not the opinion of ShiftPixy, and has not been verified or approved by ShiftPixy. ShiftPixy encourages each User to exercise good faith and fair dealing in giving objective, constructive and honest feedback and information about the other Users with whom they have transacted. ShiftPixy does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that ShiftPixy do so. Each Job Provider should undertake his or her own research to be satisfied that a specific Shift Worker is the right person for a Shift, and each Shift Worker should undertake his or her own research to be satisfied that a specific Job Provider is the right entity for which to perform a Shift. You agree that ShiftPixy is not responsible or liable for any User Generated Content.
Your Information Is Yours
Your Information remains your property. You represent and warrant that you either are the sole and exclusive owner of all Your Information, or you have all rights, licenses, consents and releases necessary to grant ShiftPixy the license to Your Information as set forth below. You hereby further represent and warrant to ShiftPixy that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe, violate or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, hateful, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography or be harmful to minors, or otherwise be offensive, as determined by ShiftPixy in its sole discretion, whether or not such material may be protected by law; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for ShiftPixy or cause ShiftPixy to lose (in whole or in part) the services of its ISPs or other partners or suppliers. ShiftPixy may, but shall not be obligated to, review, monitor, or remove Your Information, at ShiftPixy’s sole discretion and at any time and for any reason, without notice to you.
You Grant ShiftPixy a License to Use Your Information
By providing Your Information to ShiftPixy, you grant ShiftPixy a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner Your Information in all formats and distribution channels now known or hereafter devised (including in connection with the Platform and ShiftPixy’s business and on third-party sites), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. More specifically, each User who adds any User Generated Content to the Platform or otherwise provides to ShiftPixy any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Platform, hereby irrevocably grants to ShiftPixy the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such User provides to ShiftPixy, and use, reproduce, modify, or creative derivatives of such User’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such User in connection with the Platform.
- Reproduce in all media any recordings of such User’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Platform.
- Use, and permit to be used, such User’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Platform in any media.
- Use, and permit to be used, such User’s name and identity in connection with the Platform.
Each User hereby waives all rights and releases ShiftPixy from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, likeness or voice in connection with the Platform or ShiftPixy’s business.
Each User acknowledges that ShiftPixy shall not owe any financial or other remuneration for using the recordings provided hereunder by such User, either for initial or subsequent transmission or playback, and further acknowledges that ShiftPixy is not responsible for any expense or liability incurred as a result of such User’s recordings or participation in any recordings, including any loss of such recording data.
Use While Operating a Motor Vehicle or Bicycle.
Distractions while operating a motor vehicle or bicycle can create dangerous circumstances. Many states and cities have adopted laws, regulations or ordinances that limit or proscribe the use of mobile devices while operating a motor vehicle or bicycle. Prudence requires that you exercise due care and caution when using the Platform with mobile devices and that such devices not be used while operating a motor vehicle or bicycle, except in hands-free mode as permitted by law. You are solely responsible for your use of the Platform in connection with any and all such modes of transportation.
4. Your Performance and Rating within the Platform
ShiftPixy does not directly rate either Shift Workers or Job Providers. However, the Platform contains certain algorithms that may increase or decrease the rating or ranking of a Shift Worker or Job Provider, considering the suitability of a particular Shift offered by a particular Job Provider to a particular Shift Worker, based on neutral criteria, such as the proximity of a Shift Worker to the worksite of the Job Provider, average rate of pay of the Shift Worker relative to the pay proposed by the Job Provider for a particular Shift, etc.
Your rating and ranking within the Platform can also be affected by the direct feedback of Job Providers with regard to your performance of Shifts. It is anticipated that a Shift Worker who performs Shift work with enthusiasm, a positive attitude, active performance, helpfulness, efficiency, neat appearance and punctuality will increase his or her rating as a Shift Worker in the Platform, while a Shift Worker who is not enthusiastic, who has a negative attitude, whose performance is inactive, who is not helpful, whose performance is inefficient, whose appearance is sloppy or hygienically offensive, and who is not punctual will decrease his or her rating as a Shift Worker in the Platform.
Your rating and ranking within the Platform can also be affected by the direct feedback of Shift Workers who have performed Shifts with you. It is anticipated that a Job Provider whose work is reasonable and not excessively demanding, whose work environment is favorable, whose supervisory and/or managerial staff are fair, and/or who accurately stated the terms of a proposed Shift, will increase its rating as a Job Provider in the Platform, while a Job Provider whose work is unreasonably or excessively demanding, whose work environment is unfavorable, whose supervisory and/or managerial staff are unfair or offensive, and/or who misrepresents the terms of a proposed Shift, will decrease its rating as a Job Provider in the Platform.
5. General Release
The Platform is a venue only for connecting Shift Workers and Job Providers. Because ShiftPixy is not involved in the actual contact between Users or in the completion of the Shift, in the event that you have a dispute with one or more Users, you release ShiftPixy and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
SHIFTPIXY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS PLATFORM.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6. Disclaimers; Limitation of Liability; Indemnity
USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK.
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” SHIFTPIXY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SHIFTPIXY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM OR ANY SHIFTS OFFERED OR ACCEPTED THROUGH THE USE OF THE PLATFORM, OR THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. SHIFTPIXY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, ABILITY OR WORK ENVIRONMENTS OF JOB PROVIDERS OR THE QUALITY, SUITABILITY, OR ABILITY OF ANY PARTICULAR SHIFT WORKER. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, REMAINS SOLELY WITH YOU, AS EITHER A JOB PROVIDER OR SHIFT WORKER, AS APPLICABLE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, NEITHER SHIFTPIXY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY SHIFT WORK, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM.
NEITHER SHIFTPIXY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER SHIFTPIXY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
SHIFTPIXY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
LIMITATION OF LIABILITY.
SHIFTPIXY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE PLATFORM, EVEN IF SHIFTPIXY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHIFTPIXY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE PLATFORM OR YOUR INABILITY TO ACCESS OR USE THE PLATFORM; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY JOB PROVIDER, EVEN IF SHIFTPIXY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHIFTPIXY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SHIFTPIXY’S REASONABLE CONTROL.
GENERALLY SPEAKING, NO SOFTWARE SYSTEM, PERFORMING PROCESSES AS COMPLEX AS THOSE PERFORMED THROUGH THE PLATFORM, IS FREE FROM ERROR. IN THE EVENT YOU EXPERIENCE A PROBLEM, ERROR OR DEFICIENCY WITH THE OPERATION OF THE PLATFORM, YOU SHOULD PROVIDE NOTICE TO SHIFTPIXY REGARDING SUCH PROBLEM, ERROR OR DEFICIENCY, INCLUDING INFORMATION AS MAY BE NEEDED FOR SHIFTPIXY TO INVESTIGATE THE MATTER. EVEN IF SUCH PROBLEM, ERROR OR DEFICIENCY RESULTS IN DAMAGES OR LOSS TO YOU, SHIFTPIXY’S SOLE LIABILITY AND RESPONSIBILITY SHALL BE TO ENDEAVOR TO FIX OR ADJUST THE PLATFORM AS NECESSARY TO AVOID OR MITIGATE ANY FURTHER INCIDENTS OF SUCH PROBLEM, ERROR OR DEFICIENCY, PROVIDED, HOWEVER, IF YOU PAID SUBSCRIPTION FEES DURING THE MONTH IN WHICH YOU SUFFERED LOSS OR DAMAGE AS A DIRECT CONSEQUENCE OF A PROBLEM, ERROR OR DEFICIENCY WITH THE OPERATION OF THE PLATFORM, SHIFTPIXY MAY REFUND A PORTION OF YOUR SUBSCRIPTION FEES UP TO THE LESSER OF THE FULL AMOUNT OF THE SUBSCRIPTION FEES PAID IN SUCH MONTH OR THE AMOUNT OF YOUR LOSS OR DAMAGE.
WITH REGARD TO SHIFT WORKERS, THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER OR EMPLOYEE THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. IN PARTICULAR, THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT LIMIT YOUR RIGHTS UNDER WORKER’S COMPENSATION, WAGE AND HOUR, DISCRIMINATION AND OTHER EMPLOYMENT RELATED LAWS TO THE EXTENT THAT SUCH LAWS APPLY TO YOU IN YOUR EMPLOYMENT WITH SHIFTPIXY IN PERFORMING SHIFTS WITH JOB PROVIDERS.
You agree to indemnify and hold ShiftPixy and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of or inability to use the Platform or services or Shift work or Shift Workers obtained through your use of the Platform; (ii) your breach or violation of any of these Terms; (iii) ShiftPixy’s use and display within the Platform of Your Information; or (iv) your violation of the rights of any third party, including Job Providers and/or Shift Workers.
7. Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to these Terms (“Dispute”), you and ShiftPixy agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your residential address, if you are a Shift Worker, and your business address if you are a Job Provider, with an email copy to the email address you have provided to ShiftPixy. ShiftPixy’s address for such notices is ShiftPixy, Inc., Attn: Legal Department, 1 Venture, Suite 150, Irvine, CA 92618.
In the event that the Dispute is not resolved through the negotiations described above, then the Dispute will be settled by binding arbitration between you and ShiftPixy, except that each party retains the right to bring an individual action in small claims court (to resolve small claims with such court’s jurisdiction) and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and ShiftPixy are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. You and we agree that any claim, action or proceeding must, accordingly, be brought in our or your corporate (as an entity) or individual (as a person) capacity, as applicable. Further, unless both you and ShiftPixy otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Further in this regard, YOU ACKNOWLEDGE AND AGREE THAT YOU AND SHIFTPIXY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. This “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association (“AAA”) 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. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure.
Unless you and ShiftPixy otherwise agree, the arbitration will be conducted in Orange County. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and ShiftPixy submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the 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. If ShiftPixy prevails in arbitration, ShiftPixy will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, ShiftPixy will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the modification-related provisions above, if ShiftPixy changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing ShiftPixy written notice of such rejection by mail or hand delivery to: ShiftPixy, Inc., Attn: Legal Department, 1 Venture, Suite 150, Irvine, CA 92618, or by email from the email address associated with your Account to: [email protected], within 30 days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and ShiftPixy in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER. You may opt out of the foregoing arbitration and class action/jury trial waiver provisions of these Terms by notifying ShiftPixy in writing within 30 days of the date you first registered for the Platform. To opt out, you must send a written notification to ShiftPixy at ShiftPixy, Inc., Attn: Legal Department, 1 Venture, Suite 150, Irvine, CA 92618, that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
8. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to ShiftPixy’s designated agent. Please visit ShiftPixy’s web page at http://www.ShiftPixy.com for the designated address and additional information.
ShiftPixy may give notice by means of a general notice on the Platform, electronic mail to your email address in your Account, text message to your Account phone, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or text message). You may give notice to ShiftPixy, with such notice deemed given when received by ShiftPixy, at any time by first class mail or pre-paid post to ShiftPixy, Inc., Attn: Legal Department, 1 Venture, Suite 150, Irvine, CA 92618.
You may not assign these Terms without ShiftPixy’s prior written approval. ShiftPixy may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of ShiftPixy’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, or agency relationship exists between you, ShiftPixy or any Job Provider as a result of this Agreement or use of the Platform; however, with regard to Shift Workers, an employment agreement may be created between you and ShiftPixy as a consequence of your performing Shift work pursuant to the provisions of this Agreement. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. ShiftPixy’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ShiftPixy in writing.