SmartShifts Employer and Employee
Terms of Service
Last Updated: November 28, 2023
ARTICLE 1 - INTRODUCTION
PLEASE BE ADVISED THAT THIS CONSTITUTES A LEGALLY BINDING CONTRACT.
YOU MUST BE A MINIMUM OF 18 YEARS OF AGE TO CONSENT TO THESE TERMS OF SERVICE AGREEMENT AND UTILISE THE SMARTSHIFTS SERVICES. IF YOU ARE UNDER 18 YEARS OF AGE, YOU ARE PROHIBITED FROM USING THE SMARTSHIFTS SERVICES OR THE SMARTSHIFTS PLATFORM.
These Terms of Service Agreement (“Agreement”) is between you, acting as an Employee or Employer (as specified below), and SmartShifts. (“SmartShifts,” “Company,” “we,” “us,” “our”). Except where otherwise indicated, the parties may collectively be referred to as “Parties.” In recognition of the promises, covenants, usage of the SmartShifts Platform, and reciprocal agreements stated in this document, the parties hereby consent as follows:
ARTICLE 2 - DEFINITIONS
"Employee" (“Employee,” “you,” “your,” or “user”) refers to a person or individual Employed by an Employer and potentially looking to manage their personal information, access scheduled shifts as well as book overtime shifts via the SmartShifts Platform.
"Employer" signifies any service provider, institution, place, building, or portion thereof. It could be a partnership or corporation, public or private, which provides services and may be seeking an Employee to work shifts at its location(s) or remotely through the SmartShifts Platform.
"SmartShifts Platform", "Platform", or "Our Platform" is a software platform that offers information, a freelance community interface, and a marketplace where Employees and/or freelancers looking for work opportunities for per diem shifts can view a variety of shifts available, published, posted, or listed by an Employer or another source via the Platform.
"Confidential Information" implies information about the Company and its Customers, Customer Prospects, Proprietary Information, Independent Contractors, and/or Vendors that is not generally known outside the Company, which you will discover, have access to, or have been privy to in relation to your involvement or engagement with the Company. Confidential Information could include, but is not limited to, various aspects concerning the Company's
operations, finances, clientele, vendors, business strategies, and other sensitive information that you may encounter through the SmartShifts Platform or disclosed by the Company or its employees.
"Proprietary Information" refers to discoveries, developments, methods, processes, compositions, works, lists, tables, concepts, and ideas (whether or not patentable or copyrightable), domain names, trade secrets, copyrights, ideas, techniques, technical data, know-how, inventions (whether patentable or not), and any other type of information pertaining to the designs, configurations, tooling, documentation, recorded data, schematics, circuits, mask works, layouts, source code, object code, master works, master databases, algorithms, flow charts, formulae, works of authorship, mechanisms, research, manufacture, improvements, assembly, installation, intellectual property including patents and patent applications, photographs, negatives, digital images, software, computer programs, ideas, research, developments, inventions (whether patentable or not), processes, formulas, technology, designs, drawings, engineering, hardware configuration information, forecasts, strategies, marketing, finances or other business information, and the information concerning the Company's actual or anticipated business, research or development, or received in confidence by or for the Company from any other person. It includes anything conceived, made, developed, maintained, created, or reduced to practice by the company or encountered during your use of Our Platform or engagement with the Company, directly or indirectly useful in, or related to, the business of the Company or any business or products contemplated by the Company.
"Scheduled Shift" indicates a posted timeframe on a specific date and time when an Employee is hired by and provides professional services for an Employer through the SmartShifts Platform.
ARTICLE 3 - ACCEPTABLE USE OF THE SMARTSHIFTS PLATFORM
3.1 SmartShifts will enable Employers to post any of their required or needed per diem shifts on our Platform so Employees and/or freelancers can view and request any listed per diem shift. Employers have the sole responsibility to approve any potential Employees who requested overtime or scheduled shifts. Parties understand that any shift listed on our Platform is not the product or under the control of SmartShifts. All information contained in any listed shift, any error, or other discrepancy regarding a listed shift is the sole responsibility of the Employer, who also assumes any and all liability arising therefrom.
ARTICLE 4 - AGE LIMITATION AND AUTHORITY.
4.1 You must be at least 18 (eighteen) years old to use the SmartShifts Platform. By agreeing to this Agreement, by any use of the SmartShifts Platform, or by creating a profile in the SmartShifts Platform, you represent and warrant that you are at least 18 years old, possess the legal capacity and authority, consent, or Employer to enter into this Agreement on your own behalf or on behalf of another entity, if applicable. We assume no responsibility or liability for any misrepresentation of your age or authority, and any such misrepresentation shall constitute a material breach of this Agreement. You
further recognise that you waive and are estopped from asserting otherwise in any legal or arbitration proceeding.
ARTICLE 5 - ACKNOWLEDGEMENT
5.1 You acknowledge that you are entering into this Agreement either by any use of the SmartShifts Platform, by signing or acknowledging this Agreement, or by creating a profile in the SmartShifts Platform as an Employee or Employer. You expressly acknowledge that you comprehend this Agreement in its entirety and accept all of its terms and obligations. If you do not agree to be bound by the terms and conditions of this Agreement, you shall not use or access Our Platform or any of the services provided through Our Platform. Unless otherwise indicated, each term, condition, or obligation as stated herein shall apply to and be binding upon each Employee and Employer. You further acknowledge that your transaction or signature in our records may not be denied legal effect because such acknowledgment or signature is conducted or executed electronically. If a record or signature is required by law, you consent that your electronic record, signature, or acknowledgment satisfies that requirement.
ARTICLE 6 - INTELLECTUAL PROPERTY
6.1 We, SmartShifts, own our software platform along with all of the text, images, software, trademarks, service marks, Confidential Information, Proprietary Information, and other property contained on our websites, digital Platforms, software, or any other tools, materials, or elements associated with the operation of our Platform in any way whatsoever (“Intellectual Property”). Aside from your use of the SmartShifts Platform and any applicable Terms of Use or other licenses that may have been granted, you have no rights to, and shall not copy, obtain, distribute, or transmit any Intellectual Property, except for your individual use in accordance with this Agreement or our Terms of Use, which are incorporated herein by reference. All copyright, trademark, and other proprietary rights notices included on our Platform as presented on our Platform must appear on all copies you print or create in any way if you have been granted such a license to use. Other product, service, or company designations, logos, trademarks, or similar that may appear on our Platform belong to their respective owners, and any infringement thereof shall be pursued under law. Your use of and access to our Platform does not grant you any license or right to use any of the marks included on our Platform in any way. Any license or use of any Intellectual Property can only be granted by us in writing.
6.2 In the event that a party is asked to or required to disclose any Intellectual Property, or any other information concerning SmartShifts by law or regulation, that party shall provide SmartShifts with prompt written notice of such request or requirement. This allows SmartShifts (i) to seek an appropriate protective order or other remedy, (ii) to consult with the parties about taking steps to resist or limit the scope of such request or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If such protective order or other remedy is not obtained, or SmartShifts waives compliance, in whole or in part, with the terms of this Agreement, the parties shall make commercially reasonable efforts to disclose only that portion of the Intellectual Property legally required to be disclosed and to ensure that all Intellectual Property so disclosed is treated confidentially. All rights, titles, and interest in
and the Intellectual Property will remain the exclusive property of SmartShifts.
6.3 Nothing in this Agreement will be interpreted to grant the parties any rights to or license under the Intellectual Property or under any related patent, patent application, trademark, copyright, know-how, or other intellectual property of SmartShifts. If you are asked about information covered by this agreement by someone not authorised to receive such information, you agree to notify the Company within 24 hours of such a request. Please note that we assume no responsibility for reviewing unsolicited or solicited ideas, materials, or submissions for our Platform, including but not limited to, product, platform use, or advertising ideas, and will not be liable for any similarities between those ideas and materials that may appear in future SmartShifts programs or content. Also, remember that you are responsible for whatever material you submit, including its reliability, originality, and copyright. Please do not reveal trade secrets or other confidential information in your messages. Any and all rights to materials, ideas, submissions, submitted to us become the exclusive property of SmartShifts.
Duty of Confidentiality and Restriction. At all relevant times now and in the future, and during your involvement with the Company, you, your agents, employees, associated personnel, shall not directly or indirectly reveal, export, disclose, allow access, or otherwise distribute any Company’s Intellectual Property outside of your use of the SmartShifts Platform in accordance with this Agreement. Except as is reasonably necessary in the performance of the parties obligations to SmartShifts, use of our Platform, and in accordance with this Agreement, you shall not directly or indirectly reveal, export, disclose, allow access, or otherwise distribute any Company’s Intellectual Property to anyone for any reason without SmartShifts’s express written consent before, during, or after your use of the SmartShifts Platform. The parties acknowledge that SmartShifts’s Intellectual Property may increase in its amount, content, or duration and is not limited in scope. Notwithstanding the foregoing, Intellectual Property does not include any information that: (A) was or entered the public domain through no fault of the parties and not in violation of this Agreement; or (B) is disclosed to the parties by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality.
Nature of Intellectual Property. The parties acknowledge and agree that the Intellectual Property protected by this Agreement is of a special, unique, unusual, extraordinary, and intellectual character that monetary damages would not suffice to prevent or compensate for the unauthorised use or disclosure of the Intellectual Property or breach of the covenants herein. Therefore, specific performance, injunctive relief, and other equitable remedies would be appropriate to prevent any actual or threatened use or disclosure of the Intellectual Property or breach of the covenants herein. The parties also acknowledge that the interests of SmartShifts in and to its Intellectual Property may be irreparably injured by disclosure of such Intellectual Property. The remedies stated above may be pursued in addition to any other remedies available at law or in equity for breach of this Agreement, and the parties agree to waive any requirement for the securing or posting of any bond or other security in connection with such remedy. Should litigation be instituted to enforce any provision hereof, the prevailing party will be
entitled to recover all costs, including, without limitation, reasonable legal fees, cost of investigation and cost of settlement.
ARTICLE 7 - YOUR DATA AND USAGE.
7.1 SmartShifts utilises data and information ("Your Data") of the Employee and Employer to deliver services and application usage as approved by these terms and in compliance with our Privacy Policy, which is incorporated herein by reference. It is acknowledged and agreed that we may, for the provision of any service and for your use of Our Platform: (i) duplicate Your Data stored on Our Platform or on a third-party service that you allow us access to via an API ("application programming interface") or other means; and (ii) adapt and transfer Your Data back to said third party, all subject to the third party's terms of service overseeing Your Data. We may retain copies of Your Data to meet applicable law requirements and audits. The responsibility for the accuracy, quality, and legality of Your Data on Our Platform is solely yours. You assure us that any information you provide to us regarding your use of the SmartShifts Platform, background check, or other processes we may require is accurate and complete. You shall safeguard us against any inaccuracies, omissions, or false information or documentation you provide.
7.2 Whether you're an Employee or an Employer, to offer you a variety of features and services, you give SmartShifts permission to share the following categories of your personal data ("Your Data") with third parties for business use and in conjunction with your use of the SmartShifts Platform, including but not limited to:
Personal identifiers, such as your name, address, email address, phone number, date of birth, government identification number, driver’s license information, etc.
Financial data, including bank routing numbers, tax details, and any other payment information you provide;
Internet or other electronic network activity information, such as your IP address, browser type, operating system version, carrier and/or manufacturer, device identifiers, and mobile advertising identifiers;
Location or geo-location data.
Any information or documentation you upload or send through the SmartShifts Platform, for instance, professional license information, credentials, certifications, accolades, or other professional merits or identifiers.
Background check outcomes.
Drug screen results.
Any other data or documentation you might provide or which may be required for our Platform usage.
7.3 You acknowledge and agree that our use of your personal information is compliant with the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR). You hereby authorise SmartShifts to utilise and disclose this information to an Employer or Employee in connection with
your use of the SmartShifts Platform. You release SmartShifts from any liability arising from the use and disclosure of your information to any Employer, Employee, or third party, provided that such disclosure is directly related to your use of the SmartShifts Platform. This clause is governed by the laws of England and Wales, and you agree to submit to the exclusive jurisdiction of the courts of England and Wales for the resolution of any disputes.
7.4 We might monitor Our Platform's performance and usage by all our clients and merge this data with other data including Your Data, and use such combined data in an aggregate manner. You hereby agree and authorise SmartShifts to collect, use, and publish such aggregate data for the purpose of creating statistics regarding our customer base. Examples of our use of such Information include, but are not limited to, the number of users of Our Platform, the number of transactions, and growth rates.
Securing Your Data. We will employ commercially reasonable physical, managerial, and technical safeguards to protect Your Data on Our Platform from unauthorised and undesired use or disclosure. SmartShifts will make every commercially acceptable and reasonable effort to: (a) maintain the confidentiality of Your Data and confidential information using the same degree of care that it uses with Our Platform and any confidential information, but with no less than reasonable care; (b) not use any of Your Data or confidential information for any purpose outside these terms; and (c) not disclose Your Data and confidential information to any party other than our personnel, Employers, contractors, advisors, and agents as related to the use of our Platform. You acknowledge that SmartShifts may be legally compelled to disclose any of Your Data or confidential information under law.
ARTICLE 8 - COMMUNICATIONS CONSENT
8.1 By accepting this agreement or through use of Our Platform, you acknowledge, consent, and subscribe to receive communications from us or our affiliated partners to your email address, telephone number, mobile number, physical address, or similar, including via email, text message, calls, social media communications, website communications, and push notifications. You acknowledge that we may use pre-recorded communications that may be generated by automatic telephone dialing systems. Communications from SmartShifts, or any affiliated partners may include but are not limited to: operational communications concerning your account or use of Our Platform, updates concerning new and existing features on Our Platform, communications concerning promotions run by us or third-party partners, and/or news concerning SmartShifts and industry developments, or for any reason related to the use of our Platform or services related thereto. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You may receive messages at least weekly through different modes of communications from SmartShifts or affiliated companies. We may also contact you to answer certain questions we may have including but not limited to your relationship with us, your use of our Platform, to complete any additional information regarding your profile, or to set up your account. We may store your mobile number and information on our Platform in your profile and may use your mobile number to contact you regarding your use of our Platform as stated herein or by our Terms of Use which are incorporated herein by reference.
8.2 If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself. If you wish to opt-out of other promotional messages, you can manage your communication preferences within your account settings on Our Platform or by following any messaging instructions on how to opt-out, however, you acknowledge that opting out of receiving any type of promotional message may impact your use of Our Platform or related services.
ARTICLE 9 - ADDITIONAL TERMS APPLICABLE TO EMPLOYEES
9.1 As an Employee, the following additional terms pertain to your utilisation of Our Platform. You acknowledge and agree that there is no employment, Employer, or joint venture relationship established between you and SmartShifts, as stated herein. If the law requires your services to be classified as an employee for and on behalf of an Employer, you agree to comply with any legal employment requirements and waive any argument, claim, cause of action, damage, recourse, or similar assertion that you are an employee, agent, or associated in any way other than an independent contractor of SmartShifts at any time during your use of the Platform, provision of professional services, or thereafter.
9.2 Employees are invited to SmartShifts by their Employers. They can do the following on the platform:
Manage their personal information.
Manage their annual leave and attendance.
Manage their professional compliance.
Have access to their scheduled shifts.
Book overtime shifts.
Access their payroll data.
Ensure that the correct data is stored about them
9.3 Background Checks:
You understand that failure to complete the required steps involved in the background check process may result in a hold on your account or permanent restriction from using our Platform. This includes failing to follow through with the necessary procedures to finalise and complete the background check.
You agree to allow communication to be conducted through a combination of emails, calls, texts, or communications through partner vendors or our third-party background check processor. If you do not complete all the necessary steps or requirements for a background check within a reasonable period (as determined by the employer), the employer reserves the right to restrict or permanently prevent your use or access to our Platform.
You, as the Employee, bear sole and absolute responsibility for reviewing all information you provide
to SmartShifts, upload into the Platform, or presented/contained on your profile through other means, third parties, or us. Furthermore, you shall indemnify and hold SmartShifts harmless for any errors, omissions, failure to update, or discrepancies, known or unknown, with any information or documentation you provide to SmartShifts or upload into the SmartShifts Platform or provide to our third-party affiliates, such as background check or payment processing companies.
9.4 Employee Representations and Warranties:
In addition to other covenants, obligations, and warranties stated herein, by providing professional services as an Employee on the SmartShifts Platform, you represent, warrant, and affirm that:
You will perform your services for an Employer under your applicable licensure, certification, or scope of practice.
You will perform your services for an Employer in a professional manner consistent with all regulatory or legal requirements.
You will not accept scheduled and/or book overtime shifts through the Platform without the proper and legal licensure or certifications required for that specific shift.
You have no felony convictions or pending felony charges in any court.
You have never been found to have committed abuse under any circumstances by a government Employer or regulatory body.
You will not engage in behavior while performing services for an Employer or take actions or inactions that may harm or threaten the safety of others, the SmartShifts community, or any other third parties.
You agree that we may obtain information about you, including your criminal records or background checks. You agree to provide any further necessary authorisations to facilitate our access or obtain such records during the term of the Agreement.
You authorise SmartShifts to disclose or share Your Information to comply with Employer's needs or requirements.
You authorise SmartShifts to disclose any of Your Information to comply with applicable laws and screening requirements.
You acknowledge that any service you perform as an Employee through our Platform falls within your scope of practice and is within the authority and capacity granted by your professional licensure or certification pursuant to law.
You understand that this Agreement is not considered a contract for work or employment.
You acknowledge that SmartShifts also reserves the absolute and sole right to place a hold on your account or permanently prevent you from using our Platform or platform for any reason deemed appropriate or in violation of the law or this Agreement, no matter how slight.
ARTICLE 10 - ADDITIONAL TERMS APPLICABLE TO EMPLOYERS
10.1 As an Employer, we may occasionally enter into separate agreements with you that provide additional terms or augment the terms and obligations outlined in this Agreement. These terms are supplementary to this Agreement and, unless otherwise stated, shall take precedence in the event of a
conflict. This Agreement remains in full force and effect for any term or obligation not in conflict.
Listing Employers can use SmartShifts for the following reasons:
Invite their employees to the SmartShifts platform
Deactivate employee account
Manage staff scheduling
Manage sick & leave requests
Invite recruitment agenciesto provide services to them
Post shifts to recruitment Employers at agreed contract rates
Agree and sign SmartShifts digital contracts with recruitment agencies
Block book their Employees, freelance workers and recruitment agency workers
View and manage their Employee details
Sign hourly pay rate contracts with SmartShifts to use freelance Employees to cover shifts
View the profile of freelance Employees
Approve & rate completed shifts by freelance and Employer Employees
Dispute completed shifts
Using SmartShifts freelancers is a pay as you use service, once shifts are approved, payment will be made by the employer
a. Verification of Shift, shifts, Employee Competency. Employers are responsible for managing staff scheduling, including posting shifts to recruitment agencies at agreed contract rates. SmartShifts facilitates the process by documenting Job ID, start and end times, break lengths, total hours worked, billing rates, and total amounts billed for each shift.
Employers have the ability to review, approve, and rate completed shifts by both freelance and agency workers. In cases where shifts are not reviewed within 48 business hours, they will be auto-verified and deemed accepted by the parties.
b. Employee Engagement and Workplace Safety. Employers are responsible for ensuring a safe working environment and providing necessary instructions and orientation to Employees, agency and freelance workers. This includes maintaining compliance with applicable laws and industry standards. Employers acknowledge that workers, whether freelance or from agencies, are independent contractors and not SmartShifts employees.
c. Shift Reassignment and Employee Competency. Employers have the discretion to reassign shifts (floating shifts) to different departments or units. However, Employees have the right to accept or refuse such reassignments. Employers are responsible for determining the competency and qualifications of Employees for reassigned duties.
d. Charges, Pricing, and Invoicing.
Employers use SmartShifts to manage their employees data, staff scheduling and general hr activities. SmartShifts is free for employers to use at no extra cost, £0 per month.
Whenever you use smartshifts freelance workers to cover shifts, there is a fixed service charge of £9 (7.50+vat) on every shift covered by freelance workers.
ARTICLE 11 - TERM AND TERMINATION OF THIS AGREEMENT
11.1 These terms commence on the date you sign up for Our Platform. SmartShifts reserves the right to cease providing services for any reasonable business reason as stated herein. SmartShifts reserves the sole and absolute right to put a hold on your account, prevent you from requesting any posted shift, or permanently prevent you from using our Platform for any reason it deems appropriate, is in violation of law, or is contrary to your obligations in this Agreement, however slight. In doing so, SmartShifts may terminate your access and use of the SmartShifts Platform at any time for any reason, with or without cause. Any temporary license or use of our Platform is revocable at any time for any reason. We reserve the right to refuse the use of our Platform or services at any time, and it is solely at our discretion. You acknowledge that unless otherwise stated, you do not have any permanent rights, title, or interest in any license to use our Platform in perpetuity.
11.2 Upon termination or cessation of your use of our Platform, we will stop providing service and access to Our Platform, and you will stop all use of Our Platform. Upon termination, you authorise SmartShifts to automatically charge your credit card for all unpaid fees without prior notice to you, if applicable. We may also suspend your usage if any undisputed payment due to SmartShifts is over 7 days past due, and such failure to pay will be considered a material breach of this Agreement. We will not suspend service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your service is suspended for non-payment, we may charge a reactivation fee. You shall also be responsible for any expenses of collection, including costs, collection fees, disbursements, and reasonable attorney fees we incur to collect unpaid amounts, as further stated herein. Even after termination or cessation of your usage of the SmartShifts Platform, all sections in this agreement remain the rights of SmartShifts to use and enforce.
ARTICLE 12 - LIMITATION OF LIABILITY AND ASSUMPTION OF RISK
12.1 YOU ACKNOWLEDGE AND CONSENT THAT WE (SMARTSHIFTS, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, AGENTS, AND PROVIDERS) WILL NOT BE RESPONSIBLE OR LIABLE FOR (a) ANY DAMAGES TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF YOUR ACCESS TO OUR PLATFORM, YOUR DOWNLOADING OF ANY CONTENT FROM OUR PLATFORM, OR YOUR USE OF OUR PLATFORM (b) ANY INJURY, DEATH, LOSS, CLAIM, ACT OF GOD, ACCIDENT, DELAY, OR ANY DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, THAT ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH: (i) ANY USE OF OUR PLATFORM, OR OUR CONTENT; (ii) ANY ENVIRONMENTAL, UNSAFE, OR HAZARDOUS CONDITION (iii) THE PERFORMANCE OR NON-PERFORMANCE BY US; (iv) THE PERFORMANCE OR
ACCEPTANCE OF ANY PROFESSIONAL SERVICES PROVIDED TO YOU AS AN EMPLOYER OR PROVIDED BY YOU AS AN EMPLOYEE; OR (V) ANY ISSUE OR CIRCUMSTANCE THAT IS THE RESULT OR RESPONSIBILITY OF EMPLOYER, EMPLOYEE, OR THIRD PARTY.
12.2 YOU ARE AWARE AND UNDERSTAND THAT ACCEPTING/PERFORMING ANY SHIFT FOR PROFESSIONAL SERVICES OR ACCEPTING ANY EMPLOYEE ONTO YOUR PREMISES FOR THE PERFORMANCE OF PROFESSIONAL SERVICES MAY HAVE FORESEEN OR UNFORESEEN CONSEQUENCES, KNOWN OR UNKNOWN, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY TO YOU OR OTHERS, EXPOSURE TO ILLNESS OR DISEASE, DAMAGE TO PROPERTY, OR IN RARE INSTANCES, EVEN DEATH. YOU VOLUNTARILY ACCEPT THESE RISKS WITH KNOWLEDGE OF THE DANGER INVOLVED. YOU FURTHER ACKNOWLEDGE AND ACCEPT ANY AND ALL RISKS OF INJURY, DAMAGE, AND/OR DEATH IN ANY WAY, HOWEVER DERIVED AND UNDER ANY CIRCUMSTANCE. YOU HEREBY WAIVE AND RELEASE ANY AND ALL CLAIMS, HOWEVER DERIVED AND HOWEVER LABELLED, IN ANY WAY AGAINST SMARTSHIFTS FOR ANY CLAIM OR DAMAGE AS STATED HEREIN.
ARTICLE 13 - INDEMNIFICATION
13.1 Employee and Employer shall indemnify, defend, and hold SmartShifts and its affiliates and their respective successors and assigns, and each of their respective officers, directors, partners, managers, employees, stockholders, members, Contractors, attorneys, accountants, representatives, and agents, harmless against any and all claims, demands, causes of action, actions, proceedings, judgments, debts, obligations, liabilities, damages, fines, fees, penalties, interest obligations, taxes, deficiencies, losses, costs and expenses (including, without limitation, amounts paid to enforce the provisions of this Section and amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors, and other experts, and other expenses) (collectively, "Damages") incurred or suffered by SmartShifts arising out of, resulting from, relating to, or constituting (a) any fraud, misrepresentation, or breach of any provision of this Agreement (including, but not limited to, any representations and warranties as stated herein) by the Employee or Employer, or (b) any negligent, reckless, intentionally wrongful act, or willful misconduct by Employee or Employer; (c) any failure of Employee or Employer to perform its duties or obligations hereunder or in accordance with all applicable laws, rules, and regulations; or (d) your use of our Platform or services.
ARTICLE 14 - RESTRICTED ACTIVITIES AND USE OF OUR PLATFORM
14.1 You shall not, under any circumstance, for yourself or for any third party, authorise, permit, collude, associate, or invite to:
Allow anyone other than registered users to access and use Our Platform.
Use any robot, spider, scraper, or other automated and/or technical means or interface not provided through authorised channels by us to access Our Platform or extract data or gather or
use information.
Impersonate or misrepresent yourself, your credentials, or your affiliation with any person or entity.
Reverse engineer any licensed software, application, or any other aspect of Our Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content, or code of Our Platform.
Remove or modify any proprietary marking or restrictive legends placed on the Platform.
Frame any part of Our Platform, or link to Our Platform, or otherwise represent that you have a relationship with us or that we have endorsed you or your content for any purpose except as expressly permitted in writing by us to you.
Use the Platform in violation of any applicable law, this Agreement, or for any purpose not specifically permitted in these terms.
14.2 Furthermore, you agree not to use our Platform for any unlawful purpose or any purpose prohibited under this Agreement. You shall not use our Platform in any way that could damage our Platform, the business of the Company, reputation, or our Intellectual and Confidential Property. You shall not use our Platform to harass, abuse, threaten others, violate any person's legal rights, violate any intellectual property rights, upload or disseminate computer viruses or other software that may damage the property of another, perpetrate fraud, engage in unlawful gambling or pyramid schemes, publish or distribute obscene or defamatory material, publish or distribute material that incites violence, hate, or discrimination towards any group, or unlawfully gather information about others.
14.2 If at any time we consider that you are acting in a manner that breaches these terms, we may, in our sole discretion and with no prior notice to you, take whatever action is necessary to address such breaches. Should a loss of SmartShifts revenue be discovered, you agree to immediately and fully reimburse the lost revenue as determined by us.
ARTICLE 15 - DISCLAIMERS
Nothing contained in this Agreement will be deemed to constitute either party as an agent or representative of the other party, or parties as joint ventures or partners for any purpose. We may assign our rights and duties under this Agreement without such assignment being considered a change to this Agreement and without notice to you. We may modify these terms at any time by posting notice on Our Platform. Your continued use of Our Platform, following the posting of notice of any modification, will be subject to the terms in effect at the time of your use.
ARTICLE 16 - WARRANTY DISCLAIMER
SMARTSHIFTS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
SMARTSHIFTS MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY OBLIGATION, THAT: (A) OUR PLATFORM WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS. (B) THE CONTENT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, ACCURATE, OR APPLICABLE TO YOUR CIRCUMSTANCES. (C) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF OUR PLATFORM OR ANY SERVICES OFFERED THROUGH OUR PLATFORM IS ACCURATE AND COMPLETE. (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH OUR PLATFORM WILL MEET YOUR EXPECTATIONS. YOUR USE OF OUR PLATFORM OR ANY SERVICE PROVIDED BY SMARTSHIFTS SHALL BE "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ACKNOWLEDGE THAT SMARTSHIFTS SHALL HAVE NO LIABILITY FOR ANY INFORMATION, CONTENT, OR MATERIALS PUBLISHED, DISPLAYED, OR OTHERWISE TRANSACTED ON OUR PLATFORM. WE DO NOT WARRANT THAT YOUR USE OF THE SMARTSHIFTS PLATFORM WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN THE SMARTSHIFTS PLATFORM WILL BE CORRECTED, OR THAT THE SMARTSHIFTS PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM ANY LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SMARTSHIFTS PLATFORM.
ARTICLE 17 - FORCE MAJEURE
No party shall be held accountable for any failure or delay in its performance of obligations under this Agreement due to circumstances beyond its reasonable control, such as acts of God, accidents, riots, war, terrorist acts, fires, floods, embargoes, insurrections, strikes, epidemics, pandemics, quarantines, civil unrest, natural disasters, acts or omissions of the government, or changes in laws or regulations. However, force majeure will not encompass financial distress, changes or disparities in market prices or conditions, or a party's financial inability to perform its obligations hereunder. The impacted party should make a reasonable effort to evade or eliminate such causes if reasonably feasible.
ARTICLE 18 - VIOLATION
We hold the right to supervise your adherence to the stipulations of this Agreement. If we discern that you have exceeded any usage limitations or are not using Our Platform in compliance with these terms, we may restrict or eliminate your access to our platform. In the event we become aware of any violation of this Agreement, irrespective of its gravity, we reserve the right to deny service to you for any reason as mentioned in this Agreement. Your usage of our Platform is voluntary and can be revoked, and our allowance of your usage is also voluntary and can be revoked. This Agreement and our Terms of Use do not confer you an unconditional or perpetual license. Any license we may grant is non-exclusive and can be revoked at any point for any reason as stated herein. We reserve the right to restrict, cancel, or revoke any license to use our Platform in any way.
ARTICLE 19 - MEDIATION/ARBITRATION
In the event of a disagreement between the Parties pertaining to or arising from this Agreement, the Parties shall first aim to resolve the dispute personally and in good faith. If personal resolution attempts prove unsuccessful, the dispute shall be submitted to mediation.
If mediation is unsuccessful in resolving the dispute, the Parties shall submit the dispute to binding arbitration. The arbitration shall be conducted by a single arbitrator with no authority to add Parties, alter the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable laws. Claims requiring arbitration under this section include, but are not limited to, contract claims, tort claims, and claims based on local laws, ordinances, statutes, or regulations. However, claims related to intellectual property and billing/fees/collection by SmartShifts will not be subject to arbitration and may, as an exception to this provision, be litigated. By agreeing to this provision in this Agreement, the Parties waive any rights they may have to a jury trial concerning arbitral claims.
ARTICLE 20 - ENTIRE AGREEMENT; MODIFICATION
This Agreement: (i) Embodies the total and exclusive understanding and agreement between the parties and SmartShifts with regard to the subject matter, (ii) Supersedes all previous and concurrent understandings, terms, and agreements, both verbal and written, explicit or implicit, related to the use of the Platform in connection with the subject matter, and (iii) Any amendment of this Agreement must be in writing and executed by SmartShifts.
ARTICLE 21 - ASSIGNMENT
Neither the Employee nor the Employer can assign its rights or duties under this Agreement without the express written consent of SmartShifts.
ARTICLE 22 - CAPTIONS
The captions and headings are included for reference and ease only and shall not influence the construction or interpretation of any terms of this Agreement.
ARTICLE 23 - SURVIVAL
All provisions of this agreement shall survive any cessation or expiration of the parties' use of the Platform. The termination or expiration shall not negatively affect the rights or obligations of the Parties accrued prior to such termination or expiration.
ARTICLE 24 - GOVERNING LAW AND CONSENT TO JURISDICTION
This Agreement shall be interpreted according to the laws of England and Wales regardless of conflict of laws provisions. The parties submit to the exclusive jurisdiction of the courts of England and Wales, and consent that these courts have the sole and exclusive jurisdiction over all disputes and causes of action involving such party arising from or related to this Agreement or its performance, despite any
venue requirement by local statute or rule.
ARTICLE 25 - SEVERABILITY
If any provision of this Agreement is declared invalid by any court of competent jurisdiction, such invalidity shall not impact the remaining provisions of this Agreement, which shall remain fully severable and given full force and effect.
ARTICLE 26 - WAIVER
The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute the waiver of any subsequent breach of the same term or condition or the waiver of any other term or condition of this Agreement. Nothing contained in this Agreement shall prevent SmartShifts from pursuing any other remedies available for any breach or threatened breach, including the recovery of monetary damages or injunctive relief.
ARTICLE 27 - ATTORNEYS' FEES
If either party initiates a legal action relating to this Agreement, the prevailing party is entitled to receive from the other party all attorney's fees, costs, and expenses incurred by the prevailing party. If the court determines that a party is in default under this agreement, then the non-defaulting party shall receive all attorney's fees, costs, expenses, and interest incurred. This provision does not restrict the court in any way to award other forms of relief to either party.
ARTICLE 28 - REMEDIES
In addition to any other available remedies at law, the Parties agree to seek declaratory, injunctive, and equitable relief without additional procedural requirements or delay to compel fulfilment of this Agreement.
ARTICLE 29 - NO CONSTRUCTION AGAINST DRAFTER
The Parties acknowledge that no rule of construction providing any ambiguity or uncertainty in the Agreement shall be construed against the drafter thereof or used in interpreting or enforcing the terms of this Agreement.
ARTICLE 30 - FREE AND VOLUNTARY ACCEPTANCE OF AGREEMENT
The Parties acknowledge and warrant that they have read, agreed to, and understood the terms of this Agreement before signing it. They have executed it freely and voluntarily after a thorough review of its terms, satisfying themselves that this Agreement is fair and equitable to them. The Parties confirm that they have accepted and entered into this Agreement without fraud, duress, or undue influence, and that they are not relying on any representation, assurance, warranty, or promise from any other Party other than those contained in this Agreement. The Parties represent, warrant, and agree that upon accepting and entering into this Agreement, they are not relying upon and have not relied upon any representation, promise, or statement made by anyone which is not stated, contained, or embodied in this Agreement.