TERMS AND CONDITIONS OF USE

Last Updated on August 19, 2020

THE TERMS OF USE SET FORTH THE TERMS AND CONDITIONS OF A LEGALLY BINDING CONTRACT BETWEEN ShiftPixy, INC AND USERS OF THE ShiftPixy, INC. WEBSITE AND/OR MOBILE APPLICATION. YOUR USE OF THE WEBSITE AND/OR MOBILE APPLICATION IS YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF USE.

 

Introduction

ShiftPixy, Inc. (“ShiftPixy,” “we,” “our,” the “Company”) offers a variety of human capital management services including: payroll, workers compensation, benefits, human resources, onboarding, scheduling, temporary shift work, and communication software tools available online, including mobile applications and websites.

The following terms of use (“Terms of Use”) govern all use of (1) the ShiftPixy website —www.ShiftPixy.com (the “ShiftPixy Site”), which is owned by ShiftPixy; (2) the ShiftPixy Labs website – www.ShiftPixyLabs.com (the “Labs Site”) (The ShiftPixy Site and the Labs Site are referred to herein collectively as the “Sites”) ; (3) our mobile applications, including ShiftPixy, ShiftPixy Labs, and ZiPixy, to which these Terms of Use apply (the “Application” with the Sites & Application referred to collectively as the “Platform”); and/or (3) any of the Services offered by ShiftPixy made available through the Platform (the “Services”). Should there be a conflict between these Terms of Use and any Client Services Agreement (“CSA”) entered into between ShiftPixy and a client business (“Provider”), the CSA will control.

Please review these Terms of Use as they govern your use of the Services. ACCESSING, BROWSING, OR USING THE SERVICES, OR BY CLICKING TO AGREE TO THESE TERMS OF USE WHEN THAT OPTION IS MADE AVAILABLE TO YOU, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY, INCLUDING, WITHOUT LIMITATION, BINDING ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS OF USE AND OUR PRIVACY POLICY THEN PLEASE DO NOT USE OR ACCESS THE SERVICES.

ShiftPixy controls and operates the Services from its offices within the United States. Claims relating to, including the use of, the Services, ShiftPixy Content (as defined below), and the Content contained herein are governed by the laws of the United States and the State of Florida, without regard for its conflicts of law provisions. ShiftPixy and you agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Use or your use of these Services shall be filed only in the state or federal courts located in Miami, Florida, United States of America, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action that is not subject to binding arbitration as set forth herein. You expressly submit and consent in advance to such jurisdiction in any action or suit commenced in such court, and you hereby waive any objection that you may have based upon lack of personal jurisdiction, improper venue or non conveniens. If you do not agree, please do not use these Services. If you choose to access these Services from another location, you do so on your own initiative and are responsible for compliance with applicable local laws.

The Services enable our customers to, among other things: provide for native delivery, onboard new employees, schedule, assign, and post shift openings, send and receive messages, manage employees, allow employees to manage their work schedule and/or pick up extra shifts. Find out more about our Services here.

Your access to or use of the Services constitutes your acceptance of all the provisions of these Terms of Use. These Terms of Use apply to any user of the Services, regardless of whether the user submits ShiftPixy Content for public display on the Sites. If you wish to use ShiftPixy’s Services, you may need to provide ShiftPixy with certain information, including information about your identity, work performance, skills, work or personal background and business performance. By submitting such information via the Platform, you consent to the collection of such personal data. We may, either incidentally during the course of business or with your permission, also access your name, email address, mobile device number, location (such as through geolocation services from your mobile device) collect other third party data about you, and collect other information as we may request from time to time, (collectively, the “Personal Information”). Please see our Privacy Policy for further details.

The Platform may also contain links to third party websites that are not owned or controlled by ShiftPixy. ShiftPixy makes no representations or warranties regarding any websites, information or content that may be accessible through any Service that is not maintained, controlled, nor created by ShiftPixy. Further, ShiftPixy assumes no responsibility for the content, privacy policies, cookies, or practices of any third-party websites.

ShiftPixy will not censor or edit the content of any third-party websites. Additionally, because ShiftPixy does not control non-ShiftPixy sites or the products advertised therein, you acknowledge and agree that ShiftPixy is not responsible for the availability of such non-ShiftPixy sites, products, or services, and is neither responsible nor liable for any content, advertising, products, services or other materials on or available from such sites. In no event shall any reference to any non- ShiftPixy site, product or service be construed as an approval or endorsement by ShiftPixy of such site, product, or service. Please see our Privacy Policy for further details. By using the Services, you expressly relieve ShiftPixy from any, and all liability arising from your use of any third-party website.

ShiftPixy grants you a limited, non-exclusive, revocable right to access and use the Services in accordance with these Terms of Use and any applicable CSA and solely for internal business use or personal use, as applicable.

 

Privacy Policy

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

 

USE OF AND REQUIREMENTS TO USE THE SITES, APPLICATION, AND SERVICES

In using the Services, you shall:

  1. accept and agree to these Terms of Use and our Privacy Policy;
  2. shall register an account with us on the Platform
  3. confirm that you are authorized to work in the U.S. and at least 18 years of age;
  4. provide all information requested by us, including Personal Information;
  5. consent to the collection of Personal Information, by submitting such information via the Platform and
  6. enable the geolocation services on your mobile device and keep such enabled while using the Services and/or the Platform.

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. 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, and any Shift related agreement with any applicable Job Provider for which you provide services.

For our compliance purposes, and in order to provide the Services to you, you hereby authorize us to, directly or through a third-party, obtain, verify, and record information and documentation that helps us verify your identity. When you register for the Services and from time to time thereafter, we may require you to provide and/or confirm information and documentation that will allow us to identify you.

By using the Services and providing Personal Information to us, you automatically authorize us to obtain, directly or indirectly through our third-party service providers and without any time limit or the requirement to pay any fees, information about you from other third-party websites and databases as necessary to provide the Services to you, including, without limitation your location through the geolocation services of your mobile device. For the purposes of such authorization, you hereby grant ShiftPixy and our third-party service providers a limited power of attorney and you hereby appoint ShiftPixy and our third-party service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place, and stead, in any and all capacities to access third-party websites, servers, and documents; retrieve information; and use your Personal Information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person.

ACKNOWLEDGE AND AGREE THAT WHEN SHIFTPIXY OR OUR THIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM SUCH THIRD-PARTY WEBSITES, SHIFTPIXY AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY.

You agree that other third-parties shall be entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. You understand and agree that the Services are not endorsed or sponsored by any third-party account providers accessible through the Services. We make no effort to review information obtained from the financial institution holding your bank account and other third-party websites and databases for accuracy, legality, or non-infringement.

You acknowledge and agree that you have control over any information, data, content, and/or files you transmit, upload, or store in association with your use of the Services, including Personal Information stored by operation of the Services (“Your Data”). You grant us authorization to use, access, view, store, copy, delete, or otherwise process Your Data as part of the Services.

You will use reasonable security precautions and employ administrative, physical, and/or technical safeguards in view of your use of the Services. The information you provide us, including, without limitation, Personal Information, Your Data and Content, is subject to our Privacy Policy.

 

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.

 

Shift Worker User Accounts.

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. 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, 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. Unless otherwise permitted by ShiftPixy in writing, you may possess only one Account.

 

Job Provider User Accounts.

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 that your Designated Representative(s) will 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.

 

SITES & APPLICATION CONTENT, OWNERSHIP, AND USE RESTRICTIONS

You are authorized to use the Services and the Content therein, solely for your own use, and all other uses are prohibited. You agree not to use the Services to act on behalf or for the benefit of a third-party, nor to allow a third-party to have access to your username or password to access or use the Services. You further agree to not use the Services to run an outsourcing business.

You are solely responsible for all activity that occurs on your account and mobile device, and you must keep your password and mobile device secure. You are responsible for implementing security measures to safeguard your access credentials, and to prevent use and disclosure by unauthorized third parties Except as otherwise required by applicable law, you are responsible for all transactions and other activities authorized or performed using your username and password or mobile device, whether authorized or unauthorized by you. Except as otherwise expressly stated in these Terms of Use or required by applicable law, we are not responsible for any losses arising out of the loss or theft of your Personal Information on your mobile device or from unauthorized or fraudulent transactions associated with your account. If you suspect or become aware of any unauthorized activity or access to your username, password, or mobile device, or if your mobile device is stolen or lost, you must contact us immediately at [email protected].

Furthermore, you agree that:

  1. your use of the Services shall comply with all applicable laws;
  2. you shall not modify, translate, disassemble, reverse engineer any portion of the Services, or otherwise seek to obtain the source code of the Services or ShiftPixy Content;
  3. you shall not launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Services in a manner that sends more messages to the ShiftPixy servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, ShiftPixy grants the operators of public search engines permission to use spiders to copy Content from the Services for the sole purpose of creating publicly available searchable indices of the Content, but not caches or archives of such Content and provided that such spiders do not affect operation of the Services. ShiftPixy reserves the right to revoke these exceptions either generally or in specific cases;
  4. you shall not 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,
  5. you shall not upload or transmit any content that constitutes unsolicited or unauthorized advertising promotional materials, commercial activities, or any other form of solicitation;
  6. you shall not create or transmit unwanted electronic communications such as “spam” to other users or members of the Services or otherwise interfere with another user’s or member’s enjoyment of the Services;
  7. you shall not transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature and will prevent the introduction and proliferation of such into the Services;
  8. you shall not use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including material that is deemed threatening or obscene;
  9. you shall not use any device, software or routine that interferes with the proper working of the Services;
  10. you shall not attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services;
  11. you shall not store, send, or post defamatory, inflammatory, trade libelous, threatening, abusive, hateful, harassing, obscene, pornographic, or indecent content or data; or
  12. you shall not interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services.

We may generate, use, transfer and/or disclose to third parties information gathered, prepared, computed, originated, or stored by us resulting from the use or provision of the Services. This data may include information derived from or based on Your Data (as defined below) provided that any such data contains no Personal Information and is used only in aggregated or anonymized form to perform data analytics; to monitor and improve the Services; and for any other reasonable commercial purpose. We own and retain all rights to this data, and no rights are granted to you, whether by implication, estoppel or otherwise in or to any such data.

 

Your Accounts

You may be required to create an account and specify a password to be able to use certain services or features on the Sites. To create an account, you must be at least 18 years old and you must provide truthful and accurate information about yourself. Do not impersonate, or try to impersonate, anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes. You agree to update such information to keep it true and accurate. ShiftPixy is not responsible or liable for any inaccurate information you provide.

In some cases, an account may be assigned to you by an administrator, such as your worksite employer. If you are using or logging into an account assigned to you by an administrator, additional terms may apply to your use of the Services, including, without limitation, those additional terms provided by the administrator. Moreover, your administrator may be able to access or disable your account without our involvement.

Some portions of the Platform require you to register and you may be asked to select a password. Select a password that would be difficult to guess and change it regularly as an added precaution. You agree not to share your password or share access to your account. You agree that you are responsible for activities that occur under your account. You agree to notify us immediately of unauthorized use of your password or account.

We reserve the right to take such action in our discretion to help ensure the security of the Platform, including, without limitation, terminating an account. Notwithstanding the above, we may rely on the authority of anyone accessing your account or using your password, and in no event, and under no circumstances, shall we be held liable to you for any liabilities or damages arising out of (i) any action or inaction of ShiftPixy under this provision or (ii) any compromise of the confidentiality of your account or password or any unauthorized access to your account or use of your password except to the extent such compromise, access or use is caused solely by ShiftPixy’s breach of the express terms of these Terms of Use, as proved by clear and convincing evidence. You may not use anyone else’s account at any time.

 

Termination

This Terms of Use is effective until terminated by either party. We may terminate or suspend the Terms of Use and/or Services at any time without notice to you. Without limiting the foregoing, we shall have the right to immediately terminate your access to the Services in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or in the event of any breach by you of these Terms of Use.

In addition to the above, we may immediately suspend or limit access to the Services, in whole or in part, at any time if: (a) we determine that you are using the Services in violation of applicable law; (b) we determine that your use of the Services adversely affects or interferes with the normal operation of the Services or any service to others in a material manner; (c) we are prohibited by an order of a court or other governmental agency from providing the Services; (d) you file bankruptcy or reorganization or fail to discharge an involuntary petition within sixty (60) days after filing date; (e) you have not paid all applicable fees when due; or (f) we reasonably believe there exists a security incident that threatens the security of the Services or data. We will have no liability for any damages, liabilities, or losses due to any termination, suspension, or limitation of your use of the Services.

Subject to any applicable CSA, you may stop using the Services or any portion thereof at any time by contacting us at [email protected] and providing sufficient information for us to verify your identity.

Upon termination of these Terms of Use, you shall destroy all Content obtained from the Services and all related documentation thereof, whether made under the Terms of Use or otherwise. The Terms of Use will terminate immediately without notice from ShiftPixy if in ShiftPixy’s sole discretion you fail to comply with any provision of the Terms of Use. Upon termination, you must destroy all Content obtained from the Services, whether made under the provisions of the Terms of Use or otherwise.

Provisions of these Terms of Use that, by their nature, should survive termination of these Terms will survive termination of these Terms of Use.

 

Text Messaging and Electronic Communications

Compliance with Laws
You represent and warrant that all communications you cause to be sent through the Service shall comply with all applicable state and federal laws and regulations, including, but not limited to, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, and all other laws and regulations concerning privacy, telemarketing, and the sending of SMS text messages.

Stopping Text Messages
To permanently cease receiving text messages from ShiftPixy, reply STOP to any ShiftPixy message. You can also adjust your settings through the Service. If you stop receiving text messages, we will alert your employer who may need to contact you another way.

Text Messaging Fees
You may sign up to receive certain ShiftPixy notifications or information, such as open Shifts where you can earn money, via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Please be aware that texting charges can fluctuate internationally. Text messaging rates can normally be found by asking your service provider.

To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under these Terms of Use and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to these Terms of Use electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.

Your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by contacting us at [email protected]. If you withdraw your consent to receive Communications electronically, we may decide, in our sole discretion, to close your account, in which case you will no longer be able to use your account or the Services, except as expressly provided in these Terms of Use. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that withdrawal of your consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.

In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address and your mobile device number or other text message address by updating your profile on the Platform. You should print and save and/or electronically store a copy of all Communications that we send to you electronically.

In order to access and retain Communications provided to you electronically, you must have: (1) a valid e-mail address; (2) a computer or other mobile device (such as a tablet or smart phone) that operates on a platform like Windows or macOS; (3) a connection to the Internet; (4) location services enabled on your mobile device; (5) a computer or device and an operating system capable of supporting all of the above.

We reserve the right, in our sole discretion, to communicate with you in paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify you of any such termination or change by updating these Terms of Use on the Platform, without obligation to deliver notice to you of such termination or change.

YOU ARE THE CURRENT SUBSCRIBER OR CUSTOMARY USER OF THE MOBILE PHONE NUMBER YOU PROVIDED TO SHIFTPIXY. Message and data rates may apply. You agree that if the mobile telephone number you provide at any time becomes reassigned, terminated or otherwise no longer your current mobile telephone number, you will PROMPTLY NOTIFY ShiftPixy of any such reassignment or termination by sending an email to [email protected]. All charges are billed by and payable to your mobile service provider. ShiftPixy does not charge for sending or receiving text messages. Data obtained from you in connection with this service may include your mobile phone number, your carrier’s name, opt-out status, and the date, time, and content of your messages. We may use this information to contact you and to provide you with the services. All data obtained is subject to our Privacy Policy.

You acknowledge that any text messages you receive from ShiftPixy are distributed via third-party mobile network providers. As a result, ShiftPixy cannot control certain factors relating to message delivery. You further acknowledge that neither ShiftPixy nor your wireless carrier is liable for delayed or undelivered text messages.

 

User Content & Security

Content You Post
We may provide opportunities for you to post text, photographs, videos, or other content (collectively, “Content”) on the Services. You are only permitted to post Content if you own all the rights to that Content, or if another rights holder has given you permission.

You do not transfer ownership of your Content simply by posting it. However, by posting Content, you grant us, our agents, licensees, and assigns an irrevocable, perpetual (non-exclusive) right and permission to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, modify, create derivative works of, exhibit, and otherwise use your Content. Without those rights, we could not offer our Services. Please note that this license continues even if you stop using our Services.

You agree to indemnify, release, and hold us harmless from any, and all liability, claims, actions, loss, harm, damage, injury, cost, or expense arising out of any Content you post.

Keep in mind that if you send us any information, ideas, suggestions, or other communications to us, those communications will not be confidential. Moreover, unless we tell you otherwise, we reserve the right to reproduce, use, disclose, and distribute such communications without any obligation to you.

By submitting any Content to ShiftPixy, you represent and warrant that:

  1. the Content is true, accurate, current, and complete;
  2. you are not and shall not misrepresent your identity or your Personal Information;
  3. you shall promptly notify us of changes to your Personal Information by updating your account on the Platform.
  4. you are the sole author and owner of the Content and any intellectual property rights thereto;
  5. all “moral rights” that you may have in such Content have been voluntarily waived by you;
  6. you are at least 18 years old; and
  7. use of the Content you supply does not violate these Terms of Use and will not cause injury to any person or entity.

You further agree and warrant that you shall not submit any Content that:

  1. is known by you to be false, inaccurate, or misleading;
  2. infringes any third party’s intellectual property rights or rights of publicity, or privacy;
  3. defames, abuses, harasses, stalks, threatens or otherwise violates 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;
  4. violates any law, statute, ordinance, or regulation;
  5. are, or may reasonably be considered to be, defamatory, obscene, libelous, hateful, racially, ethnically, or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
  6. include any information that references other websites, addresses, email addresses, contact information or phone numbers that are unrelated to you or the company or individual you have been authorized by; or
  7. contains any computer viruses, worms or other potentially damaging computer programs or files.

ShiftPixy reserves the right to change, condense or delete any Content that ShiftPixy deems, in its sole discretion, to violate the Privacy Policy or any provision of these Terms of Use. ShiftPixy does not guarantee that you will have any recourse through ShiftPixy to edit or delete any Content you have submitted. ShiftPixy reserves the right to remove or to refuse to post any Content for any reason. You acknowledge that you, not ShiftPixy, are solely responsible for the Contents and the consequences of posting or publishing them. ShiftPixy has taken reasonable steps to ensure the confidentiality of information collected in the Services and any Content. However, unexpected changes in technology may be used by unauthorized third-parties to intercept confidential information and ShiftPixy cannot be responsible should confidential information be intercepted and subsequently used by an unintended recipient.

Content Posted by Others
We are not responsible for, and do not endorse, Content posted by any other person. Accordingly, we may not be held liable, directly or indirectly, for any loss or damage caused to you in connection with any Content posted by another member.

 

SECURITY

In using the Services, you agree to the following:

  1. you will not use any device, software, or other instrumentality to disrupt, damage or interfere with or attempt to disrupt, damage or interfere with the proper functioning of the Services;
  2. you will not impersonate another person or user or allow any other person or entity to use your identification to post or view comments;
  3. you will not remove any copyright, trademark, or other propriety notices;
  4. you will not violate or attempt to violate the security of the Services, including, without limitation, (i) logging onto an account that you are not authorized to access; (ii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing” or “crashing”; or (iii) attempt to transmit any “virus”, “Trojan horse” or other software destruction or disruption device;
  5. you will not violate any applicable international, federal, state or local law, including but not limited to any regulations applicable to your use of the Services;
  6. you will not alter, copy, modify, translate, or make derivative works, or permit the alteration, copying, modification, translation, or making derivative works, of the Services or any component thereof;
  7. you will not attempt to derive the source code or object code for the Services, including by reverse engineering, decompiling, disassembling, or similar means;
  8. you will not seek to acquire any ownership interest in or to the Services;
  9. you will not license, sell, transfer, or lease, the Services or attempt any of the foregoing; and
  10. you will not copy any features or functions of the Services or access or use them to build a similar product or competitive product.

We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with generally accepted industry standards, that are designed to guard the Sites, our systems, and Transmissions provided by our Users. We will maintain any personally identifiable information that we collect and/or receive in accordance with our Privacy Policy.

 

User Conduct Guidelines

Do not use the Services in a way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Services or any features of the Services (including any technological measures we employ to enforce these Terms of Use). Use the Service in the manner that it was intended. If we (in our sole discretion) determine that you have acted inappropriately, we reserve the right to take down Content, terminate your account, prohibit you from using the Services, and take appropriate legal actions.

Using our Services does not give you ownership of any intellectual property rights to the content you access. You may not use Content from our Services unless you obtain permission from us or its owner, or unless you are otherwise permitted by law.

When you use the Sites or send communications to us through the Sites, you are communicating with us electronically. You consent to receive electronically any communications related to your use of the Sites. We may communicate with you by email or by posting notices on the Sites. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, you are agreeing that we or our agents may contact you at that address or number in a manner consistent with our Privacy Statement.

 

Notice for California Residents

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Sites, please send an email to [email protected]. You may also contact us by writing to 501 Brickell Key Drive, Suite 300, Miami, FL 33131. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

Cross-Border Application

The Services are intended to be made available only to individuals in the United States, and the information on the Platform is only for such persons. Nothing on the Services shall be considered a solicitation to sell advisory services to any person in any jurisdiction where such offer or solicitation would be unlawful under the laws of such jurisdiction. You may not use the Services and may not accept these Terms of Use if (1) you are not of legal age (either under the laws of the State of Florida or the laws of the jurisdiction of which you are a resident or from which you use the Platform) to form a binding contract with us, or (2) you are a person barred from using the Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Services.

 

Third-Party Beneficiary & Additional Terms

You agree that our third-party services providers are third-party beneficiaries of the applicable provisions of these Terms of Use, with all rights to enforce such provisions as if such service providers were a party to these Terms of Use.

In conjunction with your access or use of the Services, you may be subject to additional terms, rules, policies, and conditions that are posted on the Platform (the “Additional Terms”), which are hereby incorporated by reference into these Terms of Use. In the event of a conflict between any Additional Terms and these Terms of Use, these Terms of Use will control.

 

Indemnification

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, restaurant clients, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Services; (3) breach of these Terms of Use; (4) any breach of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Sites with whom you connected via the Sites. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

 

Limitations of Liability

EXCEPT WHERE PROHIBITED, NEITHER SHIFTPIXY NOR ITS AGENTS OR SERVICE PROVIDERS (THE “SERVICES ENTITIES”) SHALL NOT BE LIABLE FOR (1) THE PERFORMANCE OF THE SERVICES OR THE INABILITY TO USE THE SERVICES; (2) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF $100; (3) ANY EVENT BEYOND OUR REASONABLE CONTROL; OR (4) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR ANY THIRD PARTY’S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF THE SERVICES ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED (COLLECTIVELY, “DAMAGES”).

THIS DISCLAIMER OF LIABILITY FOR DAMAGES INCLUDES, BUT IS NOT LIMITED TO DAMAGES FOR (1) LOSS OF USE, GOODWILL, DATA, OPPORTUNITY, OR PROFITS, OR COST OF PROCURING SUBSTITUTE SERVICES; (2) THE TRANSMISSION OF ANY VIRUSES, DATA OR HARMFUL CODE THAT MAY AFFECT YOUR EQUIPMENT OR ANYONE ELSE’S EQUIPMENT; (3) ANY INCOMPATIBILITY BETWEEN THE SERVICE’S FILES AND YOUR BROWSER OR OTHER WEBSITE ACCESSING PROGRAM, (4) ANY FAILURE OF ANY ELECTRONIC OR TELEPHONIC EQUIPMENT, COMMUNICATION OR CONNECTION LINES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, OR ANY FORCE MAJEURE, ALL ARISING OUT OF OR IN CONNECTION WITH THE USE, COPYING, OR DISPLAY OF THE CONTENT OF THE SITES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF ShiftPixy’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.

 

Our Warranties and Disclaimers

We provide our Services using a commercially reasonable level of care and promise to do our best to make sure you enjoy the Services. But there are certain things that we do not promise about our Services.

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, THE SERVICES ENTITIES MAKE NO SPECIFIC PROMISES ABOUT THE SERVICES, THE CONTENT OF THE SITES, OR THE SHIFTPIXY CONTENT. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTIES OR CONDITIONS OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, SECURITY AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL SUCH WARRANTIES.

ALTHOUGH SHFTIPIXY BELIEVES THE CONTENT TO BE ACCURATE, COMPLETE, AND CURRENT, SHIFTPIXY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THIS PLATFORM IS ACCURATE, COMPLETE, OR CURRENT. SHIFTPIXY DOES NOT WARRANT THAT THE SERVICES, DESCRIPTIONS, INFORMATION OR CONTENT INCLUDED ON THE PLATFORM WILL BE AS REPRESENTED BY THIRD-PARTY PROVIDERS, WILL BE FREE OF DEFECTS OR LAWFUL TO SELL, OR WILL BE SATISFACTORY TO YOU, OR THAT THIRD-PARTY PROVIDERS WILL PERFORM AS PROMISED.

WITHOUT LIMITING THE FOREGOING, WE AND OUR THIRD-PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT (1) THE SERVICES WILL MEET YOUR REQUIREMENTS, (2) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.

The Content and Services described on the Platform may be out of date and ShiftPixy makes no commitment to update the information regarding Content and the Services on the Sites. However, in an effort, to provide you with the most current information, ShiftPixy will, from time to time, make changes in the Content and in the Services described on the Sites. ShiftPixy does not operate as a broker or an accounting, financial, or investment planner or advisor. ShiftPixy does not provide financial, business, accounting, securities, tax, or legal advice. Your use of the Services is at your sole discretion and risk.

Any Content or other material downloaded or otherwise obtained through the Services is done at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

 

Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

Binding Arbitration

If the Parties are unable to resolve a any controversy or claim arising out of or relating to the Sites, use of the Sites, these Terms of Use and/or the Privacy Policy (each a “Dispute”) through informal negotiations, you and ShiftPixy agree that the Dispute (except those Disputes expressly excluded below) shall be settled by binding arbitration to be held in Miami, Florida in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. To the extent permitted by law, ShiftPixy shall pay the administrative fees associated with the arbitration, except for the first $500.00 in administrative fees for any arbitration that is initiated by me, and each of us shall separately pay our counsel fees and expenses. The arbitrator shall apply Florida law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized at law. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by the American Arbitration Association, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither you nor ShiftPixy shall be entitled to arbitrate the dispute. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. DO NOT USE THIS PLATFORM IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

 

Class Action Waiver

The parties agree to bring any dispute in arbitration only on their own behalf, and not on a class or collective actions basis. Accordingly:

No right or authority exists for any dispute to be brought, heard, or arbitrated as a class or collective action (“Class Action Waiver”). The Class Action Waiver shall not be severable from this Arbitration Provision in any case in which: (a) the dispute is filed as a class and/or collective action and (b) a civil court of competent jurisdiction (subject to appeals if any to an appellate court) finds the Class Action Waiver is unenforceable. In such instances, the class and/or collective action must be litigated in a civil court of competent jurisdiction.

Notwithstanding any other clause or language in this document, Arbitration Provision and/or any rules or procedures that might otherwise apply by virtue of this document or by virtue of any arbitration organization rules or procedures that now apply or any amendments and/or modifications to those rules, any claim that the Class Action Waiver or any portion of the Class Action Waiver, is unenforceable, inapplicable, unconscionable, or void or voidable, shall be determined only by a court of competent jurisdiction and not by an arbitrator.

The Class Action Waiver and any other provision of this Arbitration Provision shall be severable in any case in which the dispute is filed as an individual (non-class and non-collective) action and severance is necessary to ensure that the action proceeds in arbitration.

 

Copyright and Trademarks

The information contained on the Platform, including all text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “ShiftPixy Content”) are copyrights, trademarks, trade dress or other intellectual property owned by, controlled by, or licensed to ShiftPixy and are protected under both United States and foreign laws. Except as explicitly stated in these Terms of Use, ShiftPixy and our licensors reserve all rights in and to our Services and the ShiftPixy Content. We may, but are not obligated to, monitor your use of the Services and ShiftPixy Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and ShiftPixy Content for (i) your own personal, non-commercial use or (ii) if you are a business or organization, to communicate about your business or organization with your Contacts. However, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or ShiftPixy Content; (b) copy, reproduce, distribute, publicly perform or publicly display ShiftPixy Content, except as expressly permitted by us or our licensors; (c) modify the ShiftPixy Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or ShiftPixy Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or ShiftPixy Content other than for their intended purposes. Any use of our Services or ShiftPixy Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

 

Modification or Changes to These Terms

These Terms of Use, or any part thereof, may be modified by us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Services after such posting shall be deemed to constitute acceptance by you of such modifications, additions, or deletions. If you do not agree to the amended Terms of Use, you must stop accessing and using the Services.

ShiftPixy reserves the right, in its sole discretion, to revise these Terms of Use at any time upon posting the amended terms on the Platform without providing notice to you. The amended terms shall automatically be effective upon posting. You should visit this page from time-to-time to review the then-current terms, because they are binding on you. Your continued use of the Services following ShiftPixy’s posting of any changes will constitute your acceptance of such changes.

 

NOTICE AND TAKE DOWN PROCEDURES

If you believe any materials or posted content (“Materials”) on the Platform infringe your copyright or trademark rights, you may request such Materials be removed by following the notice and take down procedures of the Digital Millennium Copyright Act. To follow those procedures, contact Compliance at ShiftPixy (address below) and provide the following information:

  1. A clear statement identifying the works, or other materials believed to be infringed.
  2. A statement from the intellectual property owner (“Owner”) or authorized representative that the Materials are believed to be infringing and not authorized by the Owner.
  3. Sufficient information about the location of the allegedly infringing Materials so that we can find and verify its existence.
  4. Your name, telephone number and e-mail address.
  5. A statement from you under penalty of perjury that the information supplied is accurate, and that you are authorized to act on the Owner’s behalf.
  6. A signature or the electronic equivalent from the Owner or authorized representative.

ShiftPixy’s agent for notice of copyright or trademark issues on the Platform can be reached as follows:
Attn: Compliance Team
501 Brickell Key Drive
Suite 300
Miami, FL 33131

ShiftPixy shall be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information. You further agree that ShiftPixy may use information about your demographics and use of this Platform in any manner that does not reveal your identity.

 

IP Complaints

We have a policy of limiting access to the Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may notify ShiftPixy as follows:

Address:
501 Brickell Key Drive
Suite 300
Miami, FL 33131

E-Mail Address:
[email protected]

Also, please note that if you knowingly misrepresent that any activity or material on the Services is infringing, you may be liable to ShiftPixy for certain costs and damages.

 

Contact Us

If you have questions or comments about this policy, you may email us at [email protected] or by post to:
ShiftPixy, Inc.
Attn: Compliance Team
501 Brickell Key Drive
Suite 300
Miami, FL 33131