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 a Freelancer or Agency (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
"Freelancer" (“Freelance Worker,” “Freelancer,” “you,” “your,” or “user”) refers to a job seeker potentially looking to undertake per diem shifts for Agency or any other User via the SmartShifts Platform.
"Recruitment Agency" or "Agency" 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 a Freelancer to work per diem 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 workers and/or freelancers looking for work opportunities for per diem shifts can view a variety of shifts available, published, posted, or listed by a Recruitment Agency 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.
"Shift" indicates a posted time frame on a specific date and time when a Freelancer is hired by and provides professional services for an Agency through the SmartShifts Platform.
"No-Call No-Show" denotes an occurrence when a Freelancer is scheduled and accepted for a shift by the employer or an Agency, but then the Freelancer fails to contact the Agency or the employer via the SmartShifts platform to inform all parties that the Freelancer will not be able to fulfil the scheduled shift, contrary to the Agency's expectations.
ARTICLE 3 - ACCEPTABLE USE OF THE SMARTSHIFTS PLATFORM
3.1 SmartShifts is a software platform that bridges the gap between Agencies and Freelancers for the execution of per diem shifts or other professional service necessities of Agencies. In turn, the SmartShifts Platform enables Recruitment Agencies and Employers to secure the talent they require without investing time and resources in traditional recruitment methods.
3.2 We may offer you access to our Platform as an Employer or Agency to post per diem shifts you require to be covered at your location. We may also grant Freelancers access to search, request, and accept per diem shifts posted by Agencies and/or Employers. Through our SmartShifts Platform, Agencies, Employers, and Freelancers can connect and interact so that per diem shifts are fulfilled.
Essentially, this is the acceptable use of our Platform. We may provide you with specific information via our Platform or our Platform. This information can encompass documentation, data, or information developed by the Company, supplied by Agencies, provided by Freelancers, and other materials that may aid in your use of our Platform. In line with this Agreement, the Company gives you a non-exclusive, limited, non-transferable, and revocable license to use only the necessary information in conjunction with the acceptable use of our Platform, as we deem appropriate. This information or documentation should not be used for any other purpose beyond the sole and exclusive use of our Platform, and this license ends upon your discontinuation of the use of our Platform or upon termination as stated herein. Any granted or assumed license does not grant you any rights, interest, or title to any other Intellectual Property as described herein.
3.3 SmartShifts will enable Agencies and employers to post any of their required or needed per diem shifts on our Platform so Freelancers can view and request any listed per diem shift. Agencies and employers have the sole responsibility to approve any potential Freelancer who requested a shift. 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 per diem shift, any error, or other discrepancy regarding a listed per diem shift is the sole responsibility of the Agency or Employer, who also assumes any and all liability arising therefrom. SmartShifts and our Platform will allow Freelancers to view, request, and potentially book any Agency or Employer listed shifts.
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 agency 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 stopped 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 a Freelancer. 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 Freelancer and Agency. 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
6.2 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 to 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.
documentation you provide.
7.2 Whether you're a Freelancer, 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 Agency or Freelancer 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 Agency, Freelancer, 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, Agencies, 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
8.2 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 FREELANCE WORKERS
9.1 As a Freelancer, the following additional terms pertain to your utilisation of Our Platform. You acknowledge and agree that there is no employment, agency, or joint venture relationship established between you and SmartShifts, as stated herein. Furthermore, you agree that no employment, agency, or joint venture relationship is established between you and any Recruitment Agency. If the law requires your services to be classified as an employee for and on behalf of an Agency, 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 providing professional services through the SmartShifts platform.
9.2 As a Freelancer, you maintain absolute discretion to choose when, where, how, and with which Agency you engage your professional services. Your use of our Platform and engagement of professional services are entirely voluntary and based on your free will and choice.
Freelancers can do the following::
Upload and manage their personal information
They are not employees of SmartShifts
They are not on payroll, but are independent contractors offering services to employers on SmartShifts
Freelancers are charged a fixed admin fee of £6 per shift (£5+vat)
Freelancers are paid based on the payment frequency agreed with the client(employer or agency)
Freelancers are provided with shifts details, shift locations and total shift pay
Freelancers can work whenever and wherever they choose to.
a. Independent Contractor Status.
The Freelancer will provide services to an Agency or an employer under its applicable licensure, certification, or scope of practice as an independent contractor, retaining control and responsibility over its own professional services. The Freelancer must possess all necessary licenses or certifications to perform the requested services or any services an Agency or employer may request. The Freelancer has control over the timing, manner, and location of performing the services for any Agency. Without limiting the foregoing, the Freelancer acknowledges and agrees that they are not entitled to any compensation or benefits provided to SmartShifts employees, including but not limited to salary, pension, stock options, bonuses, profit sharing, or any insurance benefits. The Freelancer is not considered an employee or agent of SmartShifts under this agreement, nor do they have the authority to contract on behalf of or bind SmartShifts based on the consulting relationship established herein.
Further, by entering into this Agreement, the Freelancer explicitly states, acknowledges, and affirms the following:
The Freelancer recognises that they operate their own independent business and provide services through or in connection with the SmartShifts marketplace as an independent contractor.
The Freelancer acknowledges that there is no employment relationship between them and SmartShifts, and that the services rendered in connection with SmartShifts or Our Platform do not establish any entitlement to unemployment benefits or any other rights arising from an employment relationship.
The Freelancer assumes full responsibility for any tax liability associated with payments received from or through SmartShifts, and SmartShifts will not withhold any taxes or other withholdings from payments to the Freelancer.
The Freelancer is responsible for obtaining and maintaining any necessary registrations, licenses, or authorisations required for the services they provide.
Additionally, the Freelancer acknowledges the following to be true:
The Freelancer is not covered by SmartShifts's health insurance coverage.
SmartShifts does not impose restrictions on the Freelancer's ability to perform services for or through other parties, and the Freelancer is authorised to accept work from and provide services to other businesses and individuals outside of the SmartShifts Platform. Freelancers are not obligated to exclusively perform work through the SmartShifts Platform.
The Freelancer has the voluntary right to accept or decline requests for their professional services through the SmartShifts Platform.
SmartShifts expects the Freelancer to provide services for other parties and does not anticipate exclusivity.
The Freelancer is not financially dependent on the services performed for or in connection with SmartShifts.
SmartShifts does not dictate the methods, processes, or performance of the Freelancer's work. Additionally, SmartShifts does not have the authority to supervise or control the actual work of the Freelancer or their employees.
While SmartShifts may set quality standards or deadlines for services performed based on industry requirements, the Freelancer retains the discretion to determine the most suitable days and time periods for their work.
The Freelancer will be compensated by or through SmartShifts based on the performance of their professional services for an Agency or employer, and SmartShifts does not provide the Freelancer with a regular salary or any minimum payment.
SmartShifts will not provide the Freelancer with business registrations, licenses, tools, or equipment required to perform their professional services. The Freelancer is responsible for providing and maintaining these resources.
The Freelancer is responsible for all expenses incurred while performing their professional services.
The Freelancer understands that SmartShifts cannot confirm the renewal status of their licensure or certification or track their hours worked under required supervision, as mandated by applicable laws. The Freelancer agrees to maintain and record any necessary information, documentation, or requirements for their own licensure renewal, status, or other obligations as prescribed by the relevant licensing authority.
b. Cancellation Policy for Accepted and/or Scheduled Shifts:
As a Freelancer, it is essential that you honor your commitment and acceptance of a shift with a Recruitment Agency or employer, unless there is a valid reason for cancellation. However, you acknowledge that cancellations by Freelancers can pose significant challenges for Listing Agencies and employers. Therefore,
SmartShifts reserves the sole right to determine the validity and acceptability of a cancellation reason. Invalid cancellations may result in temporary or permanent account suspension or blockage. As a Freelancer, you warrant that you will comply with any regulated and legal standards or requirements regarding hours worked and competency to ensure your ability to fulfill the professional services you have agreed to provide for any Agency.
To ensure the provision of quality services, SmartShifts enforces a stringent cancellation policy. We understand that unforeseen circumstances can arise, and we strive to work with you in such situations. However, it is crucial for Freelancers to be reliable, responsible, and communicative in adherence to high-quality and industry standards.
c. Payment Terms:
As a Freelancer, you will receive payment in a reasonably timely manner for the professional services provided to the Agency or employer. You acknowledge and understand that SmartShifts may utilise a third-party payment processing service. In order to use our Platform, you may be required to authorise payment through a third party. You also authorise SmartShifts to facilitate payment for your independent contracting services through a third-party payment processor. These payments are typically processed after the completion of a shift. SmartShifts will make reasonable efforts to ensure prompt payment. However, you acknowledge that payment may be delayed due to factors beyond our control. You acknowledge, disclaim, and waive any liability with respect to (i) the actions and omissions of the Recruitment Agency or employer, whether resulting from negligence, willful misconduct, or any other circumstances, regarding any payments, or (ii) any payments or amounts owed to you by the Recruitment Agency or employer.
d. 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 SmartShifts), SmartShifts reserves the right to restrict or permanently prevent your use or access to our Platform.
You, as the Freelancer, 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.
e. Tax Withholding, Insurance, Benefits:
As a Freelancer, you understand and acknowledge that it is your sole responsibility to withhold, accrue, and pay any and all income taxes, withholding taxes, or other taxes or amounts required by law in relation to any payments received through our Platform or for the professional services provided to an Agency or employer.
f. Self Control:
SmartShifts does not direct or control you in your performance of professional services for an Agency or employer under this Agreement, nor does it dictate or control your acts or omissions in any way. You retain the sole right to determine when, where, and for how long you will utilise Our Platform or provide professional services for an Agency or employer. You have the option to apply for or ignore any shift listed on Our Platform. SmartShifts does not require you to: (a) display SmartShifts's names, logos, or colors; (b) wear a uniform or any clothing displaying SmartShifts's names, logos, or colors. You acknowledge and agree that you have complete discretion to provide professional services or engage in other business activities with an Agency or employer.
ARTICLE 10 - FREELANCER REPRESENTATIONS AND WARRANTIES
In addition to other covenants, obligations, and warranties stated herein, by providing professional services as a Freelancer on the SmartShifts Platform, you represent, warrant, and affirm that:
You will perform your services for an Agency or employer under your applicable licensure, certification, or scope of practice as an independent contractor, retaining control and responsibility for your own professional services.
You will perform your services for an Agency or employer in a professional manner consistent with all regulatory or legal requirements.
You will not accept a posted shift 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 agency or regulatory body.
You will not engage in behavior while performing services at a Recruitment Agency or 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 Agencies' or employers 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 independent contractor 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 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 30 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 AGENCY OR PROVIDED BY YOU AS A FREELANCER; OR (V) ANY ISSUE OR CIRCUMSTANCE THAT IS THE RESULT OR RESPONSIBILITY OF AGENCY, FREELANCER, OR THIRD PARTY.
12.2 YOU ARE AWARE AND UNDERSTAND THAT ACCEPTING/PERFORMING ANY SHIFT FOR PROFESSIONAL SERVICES OR ACCEPTING ANY ONSITE SHIFT TO BE PERFORMED ON EMPLOYER PREMISES, 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 LABELED, IN ANY WAY AGAINST SMARTSHIFTS FOR ANY CLAIM OR DAMAGE AS STATED HEREIN.
ARTICLE 13 - INDEMNIFICATION
13.1 Freelancer, Recruitment Agency and employers 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 Freelancer or Recruitment Agency, or (b) any negligent, reckless, intentionally wrongful act, or willful misconduct by Freelancer, Recruitment Agency or employer; (c) any failure of Freelancer, Recruitment Agency 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
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 Freelancer, the Agency 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 fulfillment 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.