This website is operated by ShiftWear.
ShiftWear Corp. (“ShiftWear”, “we”, “us”, “our”) has developed [an adaptable footwear line customizable via a smartphone.] These terms and conditions (the “Terms and Conditions”), as may be amended from time to time, govern your use of: (i) ShiftWear’s website located at www.shiftwear.com (the “Website”); (ii) footwear purchased by you through the Website (the “Products”); (iii) the software applications accessible through your mobile device that are related to the Products (the “App(s)”); and (iv) other related features, platforms, services and publications (including software maintenance, service information, help content, bug fixes or maintenance releases) provided by ShiftWear from time to time (collectively, the “Additional Content,” and when referenced together with the Website, the Products and the App(s), the “Services”). AS THESE TERMS AND CONDITIONS LIMIT OUR LIABILITY TO YOU, PLEASE READ THEM CAREFULLY.
By using the Services, including, without limitation, submitting your order for the Products on the Website, registering and creating a User account or downloading the App(s), you, the user (“User”, “you”, “your”), agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you are not authorized to, and must not, use the Services. We may, in our sole discretion, amend these Terms and Conditions at any time by posting a revised version on the Website, as described in Article (C)(8).
The full name of our company is ShiftWear Corp. We are registered in New York, U.S.A. Our principal office is located at [61 South Main St, Suite 4, New City, New York, 10956]. You can contact us by writing to that address or by email at firstname.lastname@example.org. These Terms and Conditions are provided in the English language only.
ARTICLE A: TERMS AND CONDITIONS OF YOUR USE OF THE SERVICES
This Article A governs your use of the Services.
You must be at least eighteen (18) years old to offer to purchase a Product. By agreeing to these Terms and Conditions, you represent and warrant to us that you are at least eighteen (18) years old. If you are offering to purchase a Product on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and Conditions and you agree to be bound by these Terms and Conditions on behalf of that organization.
(2) System Requirements
Use of the Services requires a smartphone or similar device, internet access (at the time that you register, create and make changes to your account), and certain software in the form of the App(s). Continued use of the Services may require you to obtain ShiftWear-provided updates or upgrades to the App(s) from time to time. Because use of the Services involves hardware, software, and for the purpose of establishing an account, internet access, your ability to use the Services may be affected by the performance of these factors. You agree that such requirements are solely your responsibility.
(3) Accessing the Services via the App(s)
(a) Registration. After you have purchased/acquired the Products, you may access the Services by following the registration procedures provided at the time you download and install the App(s) on your internet-enabled device that you own and/or control, which device is identified by ShiftWear as a device on which the App(s) and Services are able to function (“Permitted Device”). In order to access and utilize the features of the Services, you will be required to download the App(s), register with ShiftWear and create an account. You agree to provide true, accurate, current and complete information about yourself when you register or order Services from us, and you agree to promptly update such information to ensure that it remains true, accurate, current and complete.
(b) Account Information. As a registered user, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify ShiftWear by email at email@example.com. You are solely responsible for your own losses or losses incurred by ShiftWear and others due to any unauthorized use of your account.
(4) License to Use Services
Subject to these Terms and Conditions, ShiftWear grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, to use the Services for your own individual use on any Permitted Device. The foregoing limitation to individual use notwithstanding, if you are an employee of a business entity entering into transactions on behalf of such entity, you represent and warrant that, as such entity’s employee and/or agent, you are duly authorized to bind such entity to the Terms and Conditions and all transactions effected by means of the Services. You agree not to, and you will not permit any third party to, (i) take any action that would jeopardize, limit or interfere with ShiftWear’s and/or our licensors’ rights in or to the Services; (ii) copy, translate, publish or create derivative works of the Products or any component or feature of the Services; (iii) resell, distribute, trade or make any other commercial use, modify, reverse engineer, decompile or disassemble the Products or any applicable component or feature of the Services; (iv) access or monitor any material or information on any ShiftWear system using any manual process or robot, spider, scraper, or other automated means; or (v) use the Services for illegal or fraudulent purposes. You further agree to use the Services for purposes that are permitted by these Terms and Conditions and in accordance with all applicable laws and regulations. (5) Charges and Payments; Risk of Loss; Taxes
The charges, if any, for your acquisition of the Products and/or for the license and use of the Services will be as set forth on the Website and/or in the App(s), as amended from time to time. You must pay to us the charges required for the use of the Services, in cleared funds, in accordance with the instructions on the Website or in the App(s), in advance of our provision of any Services. We may vary charges for Services from time to time by posting new charges on the Website or within the App(s). However, such variations will not affect Services for which you have already paid.
Risk of loss of the Product passes to you on ShiftWear’s delivery of the Product to the carrier, and you are responsible for any loss or damage to the Product from that point. Claims against a carrier for damage during shipping are your responsibility.
Except in the case of sales tax for residents of the State of New York, U.S.A, all import duties, taxes and other charges are not included in the Product price, shipping cost, or any other charges related to the Services. These charges are your responsibility. Please check with your state and country’s customs office to determine what these additional costs will be prior to completing your pre-order.
Each pre-order you submit for a Product constitutes an offer to purchase that Product. In order for your offer to be eligible for ShiftWear’s acceptance, you must pay the amount for the Product selected by you by any payment method designated on the Website. Payment does not guarantee acceptance of your pre-order.
When placing a pre-order for the Products, you will be required to provide certain information, such as your address and billing information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. ShiftWear shall have no responsibility or liability for inaccurate information or information that later becomes outdated and shall have no obligation to make efforts to determine the correct contact or shipping information. You can update your information at any time prior to your Product being shipped by sending an e-mail to firstname.lastname@example.org.
Once your pre-order is accepted by ShiftWear, it is final and non-refundable; however, refunds will be issued if the pre-ordered Products are deemed by ShiftWear as undeliverable and to the extent of available assets for refund. We are engaging in a new industry, and there is no assurance that the Products and Services will contain all of the characteristics set forth herein or in our marketing materials. We will utilize commercially reasonable efforts to deliver your pre-ordered Product on the official launch dates disclosed on the Website (as such launch dates may be extended from time-to-time in our discretion); however, we cannot guarantee delivery until such time as the Products are available and in stock. Any shipping date is an estimate only, and the actual shipping date for any accepted pre-order will depend on a variety of factors, including, without limitation, our manufacturing schedule, the date that you submit your pre-order, and the date that we accept your pre-order. ShiftWear shall not be liable for unforeseen circumstances which delay or prevent the delivery of Products pre-ordered from ShiftWear. Commencement of shipping is subject to change without notice to you. We list shipping charges for each country on the Website, and you must pay all shipping charges for the location of the address you provide. You must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction, as discussed in Article A(5).
(7) Access to the Services
Subject to your compliance with these Terms and Conditions, you will be able to access and utilize any of the Services for which we have received payment in full in cleared funds. Where you have subscribed to any of the Services, such Services will be provided for the corresponding subscription period, subject to early termination in accordance with these Terms and Conditions.
Subject to your compliance with these Terms and Conditions and your timely payment for the Services, you shall have access to the Services until the Services are terminated by either ShiftWear or you in accordance with the provisions herein. If you wish to terminate your access to the Services and the limited license granted to you herein, you may do so by (i) canceling your account and subscription(s) with ShiftWear, and (ii) uninstalling the App(s) from all of your Permitted Devices.
We reserve the right at any time to modify or discontinue, temporarily or permanently, the Services, or your access to the Services, with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or your access to the Services. You agree that termination of your account is your sole remedy for any dissatisfaction with the Services.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of these Terms and Conditions, the following Articles and Subsections of these Terms and Conditions shall survive the termination of your subscription period with ShiftWear and shall remain in effect in accordance with their terms: The Preamble and Articles (A)(3)(b), (A)(8) and (C).
(9) Electronic Communication
We may communicate information, notices, messages, service alerts, announcements, agreements, disclosures or other communications (“Electronic Communications”) associated with the Services to you electronically by posting Electronic Communications on the Website, by emailing such Electronic Communications to the email address on file in your registration account, or by sending such Electronic Communications via text message and push notifications to your mobile device. Electronic Communications may result in usage fees and charges from your wireless service provider, for which you shall be solely responsible.
To access Electronic Communications from us, you must have provided us with your email address at the time of your account registration or otherwise, and you must be able to view the Electronic Communications on your mobile device or via your computer on our Website. Electronic Communications shall be deemed to be received by you when they are sent, provided, posted or otherwise communicated to you in accordance with these Terms and Conditions. You agree to keep your email address and other contact information current with us at all times in order that we may communicate with you. You may do so by updating your contact information as indicated on our Website or within the App(s).
Your consent to receive Electronic Communications from us does not mean that we must provide all communications electronically. ShiftWear may, at our option, deliver communications on paper or through other means if we choose to do so. We may also require that certain communications from you be delivered to us on paper at a specified address.
(10) Export Control
You acknowledge that Products may be subject to export control laws and other laws and regulations of the United States and other countries, and that if ShiftWear ships a Product to you, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the U.S. government; (ii) a person or entity barred by the U.S. government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold ShiftWear harmless against all claims, damages, or liability resulting from breach of the foregoing.
(11) Force Majeure
If ShiftWear accepts your offer to purchase a Product, ShiftWear will not be liable to you for any delay, including any delay due to an event beyond ShiftWear’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of ShiftWear’s control.
ARTICLE B: END USER LICENSE AGREEMENT (“EULA”)
As this EULA is a legal agreement between you and ShiftWear and it governs your use of the App(s), YOU SHOULD CAREFULLY READ THIS EULA IN ITS ENTIRETY BEFORE DOWNLOADING, INSTALLING OR USING THE APP(S).
(1) Acceptance of This EULA
Your utilization of the Services, by downloading, installing and/or using the App(s), demonstrates your express acknowledgment and agreement to the terms of this EULA. In addition, if you purchase any of the Services via the Website, or in connection with your download of the App(s), you will be prompted and required to “click-to-agree” to the terms of this EULA before making the purchase or downloading the App(s). If you do not agree to the terms of this EULA, you are not authorized to, and may not, access the Services.
(2) Limited License and Permitted Uses
You may only use the App(s) for your own private and non-commercial purposes and in accordance with the provisions of this EULA. Subject to your payment of any relevant charges with respect to the Services and your compliance with the other provisions of this EULA, we hereby grant to you a limited, non-exclusive, personal, non-sublicensable, non-assignable, non-transferable, revocable license to download, install and use the executable form of the App(s), solely for your personal use on a Permitted Device owned or controlled by you. ShiftWear expressly reserves any and all rights not expressly granted to you under this EULA. This EULA may be enforced through our use of technological protection measures.
(3) Prohibited Uses
Without limiting the generality of any restriction elsewhere in this EULA, you agree not to, and you will not permit any third party to, (i) bypass or circumvent measures we may use to prevent, interfere, or limit access to the App(s); (ii) use the App(s) to send altered, deceptive or false source-identifying information; (iii) use the App(s) to intercept, collect or store personal information about other users; (iv) spam other users or take other actions that may affect the operation or enjoyment of the App(s) by other users; (v) access, monitor or copy any content provided in connection with the App(s) using any robot, spider, scraper or other automated means or any manual process; (vi) send a virus or use any malicious programs or techniques in connection with the App(s); (vii) overload or crash the App(s); (viii) take any action that might compromise the security of the App(s); (ix) render the App(s) inaccessible to others or otherwise cause damage to the App(s); (x) add to, subtract from, or otherwise modify any content provided in connection with the App(s); (xi) access any content provided in connection with the App(s) that is not intended for you; (xii) use the App(s) in any manner that might interfere with the rights of third parties; (xiii) engage in excessively high volume data transfers or bandwidth use, including by hosting a web server, internet relay chat server or any other server via any use of the App(s); or (xiv) attempt any of the foregoing.
Except as expressly permitted in writing by ShiftWear, you must not permit any other person to use the App(s) or to exercise any of the other rights granted by us to you under this EULA. All intellectual property rights and other rights in and to the App(s) which are not expressly granted to you herein are expressly reserved by us and will remain our property and the property of our licensors, as applicable. Your use of the App(s) will be subject to any technical or contractual limitations imposed by third-party licensors in relation to the App(s) and/or Services.
(4) Amendment of EULA
ShiftWear reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. By continuing to use the App(s) after ShiftWear has posted on its Website a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App(s). This Agreement will also govern any software upgrades and/or updates provided by ShiftWear that supplement the App(s), unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
(5) Software Updates
You acknowledge and agree that from time to time we may implement remotely the download and installation on your device of software updates or bug fixes to the App(s) when your device is connected to the internet, without giving you further notice or seeking any further consent. This EULA will also apply to all such software updates and bug fixes.
(6) No Support
You acknowledge and agree that we do not undertake to provide any support in relation to the App(s) or the use of the App(s). We may elect to endeavor to resolve issues with the App(s) which we identify or which are brought to our attention, however, we have no obligation to do so because the App(s) are provided on an “as-is” basis.
(7) Accounts and Security
As a user of the App(s), you will be obligated to register and establish an account on the Website or through the App(s). You are solely responsible for maintaining the confidentiality and security of your account, including, without limitation, your password and other information which may provide others with access to your account (e.g., answers to security questions utilized to assist you in the retrieval of forgotten passwords). You should not reveal your account information to anyone else or use anyone else’s account. You are entirely responsible for all activities that occur on or through your account, and you agree to immediately notify us of any unauthorized use of your account or any other breach of security relating to your account. We shall not be responsible for any losses arising out of the unauthorized use of your account (subject to the first paragraph of Article C(3) below).
(8) Disclaimer of Warranties Relating to the App(s)
To the maximum extent permitted by law, we disclaim all representations, warranties, terms and conditions relating to the App(s), and/or the use of the App(s), that are not expressly set forth in these Terms and Conditions.
The App(s) are provided on an “as is” and “as available” basis. Use of the App(s) is at your own risk. To the maximum extent permitted by applicable law, the App(s) are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Additionally, in particular we do not warrant that:
(i) Your use of the App(s) will be uninterrupted or error-free; or
(ii) The App(s) will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and, subject to the first paragraph of Article C(3) below, we disclaim all liability relating thereto.
You will be responsible for backing up your own system/device, including any App(s) that is/are stored on your system/device.
(9) Export and Legal Restrictions
You may not use or otherwise export or re-export the App(s) except as authorized by United States law and other applicable laws. In particular, the App(s) may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the App(s), you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App(s) for any purposes prohibited by United States law or other applicable law.
(10) Termination of EULA
Without prejudice to our other rights under this EULA or the Terms and Conditions, if you breach this EULA or the Terms and Conditions in any way, or if we reasonably suspect that you have breached this EULA or the Terms and Conditions in any way, we may terminate the EULA immediately by sending to you written notice of termination (which may be given by electronic transmission). If we terminate a EULA for this reason, we will not refund to you the charges or any element of the charges you have paid. We may also terminate the EULA with respect to a particular portion of the App(s) by immediate written notice where we lose (for whatever reason) the contractual right to continue that portion of the App(s). If we terminate a EULA on this basis, we will refund to you all charges paid by you to us with respect the App(s) that you had not received as at the date of termination (which amount will be calculated by us using any reasonable methodology determined by ShiftWear), or we may provide equivalent value to you through our provision to you of other comparable App(s) chosen in our reasonable discretion.
(11) Apple-Required Provisions
As required by Apple, Inc. or its related companies (“Apple”), the following terms and provisions apply to any usages by or through the Apple App store, to which you agree:
(i) You acknowledge that we (and not Apple), are solely responsible for the App(s) and its/their contents.
(ii) Any license granted herein is a non-transferable license to use the App(s) on an iPhone, iTouch or iPad OS product or other authorized device that you own or control and subject to the usage rules set forth in the Apple App Store terms of service.
(iii) We (and not Apple) are solely responsible for any maintenance and support services (if any) with respect to our App(s) which are governed by this EULA or as required by applicable law.
(iv) To the extent that there are any product warranties, express or implied by law, we (and not Apple) are solely responsible for them. In the event of any failure of the App(s) to conform to any warranty specifically granted herein or by applicable law, you may notify Apple, and Apple may refund the portion of the App(s) purchase price applicable to such failure, which refund will satisfy any obligations whatsoever from Apple to you, to the extent permitted by law, including any obligations for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
(v) To the extent that there is any responsibility to address any of your claims relating to our App(s) or your possession and/or use of our App(s), or claims of third parties, we (and not Apple) are responsible to address such claims. Such potential claims may include, but are not limited to: (i) product liability claims; (vi) any claim that the App(s) fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) In the event of any third party claim that the App(s) or your possession and use of the App(s) infringes that third party’s intellectual property rights, we (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(viii) You represent and warrant that (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(ix) You must comply with applicable third party terms of agreement when using our App(s).
(x) You acknowledge that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you and against any third-party beneficiary of yours.
None of the provisions of this Article B(11) will expand any rights that you may have against us, and all rights of indemnity, claims, losses, liabilities, damages, costs, expenses or other claims are subject to applicable law, and to limitations set forth in these Terms and Conditions, including, but not limited to, the terms and limitations set forth in Article C of these Terms and Conditions.
ARTICLE C: GENERAL PROVISIONS
(1) Limitation of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS RELATING TO THE SERVICES, AND/OR TO THE USE OF THE SERVICES, THAT ARE NOT EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SHIFTWEAR OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, SHIFTWEAR, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT: (I) THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
(2) Limitations of ShiftWear liability
NOTHING IN THESE TERMS AND CONDITIONS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHIFTWEAR, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF, THE SERVICES. UNDER NO CIRCUMSTANCES WILL SHIFTWEAR, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR SHIFTWEAR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHIFTWEAR, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; AND (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL SHIFTWEAR, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SHIFTWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE SERVICES ARE CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. SHIFTWEAR MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND OF THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR THEIR COMPLIANCE WITH ALL APPLICABLE UNITED STATES AND LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS. YOU MAY NOT USE THE SERVICES IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE UNITED STATES, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT. UNLESS OTHERWISE EXPLICITLY STATED HEREIN, ALL SERVICES ARE SOLELY DIRECTED TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES LOCATED IN THE UNITED STATES.
You hereby agree to indemnify, defend, and hold us, our processors, suppliers and licensors (and each of our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms and Conditions, including, without limitation, any violation of our policies; (ii) your wrongful or improper use of the Services; (iii) any transaction submitted by you through the Services; (iv) your violation of any third-party right, including, without limitation, any right of privacy, publicity rights or Intellectual Property Rights; or (v) your violation of any law, rule or regulation of the United States, and any other country, state, county, city or jurisdiction in which you reside.
(4) Representations and Warranties
You represent and warrant to us that: (i) you are at least eighteen (18) years of age; (ii) you are eligible to register and use the Services and have the right, power, and ability to agree to these Terms and Conditions; (iii) the email address identified by you when you registered with ShiftWear is yours; (iv) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (v) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (vi) your use of the Services will be in compliance with these Terms and Conditions.
(5) Violations of these Terms and Conditions
Without prejudice to our other rights under these Terms and Conditions, if you violate these Terms and Conditions in any way, or if we reasonably suspect that you have violated these Terms and Conditions in any way, we may take any one or more of the following actions:
(i) send you one or more formal warnings, by electronic transmission or otherwise;
(ii) temporarily suspend your access to the Services;
(iii) permanently prohibit you from accessing any of the Services;
(iv) block computers using your IP address from accessing any of the Services;
(v) contact your internet services provider and request that they block your access to any of the Services; and/or
(vi) seek legal recourse against you in accordance with the terms set forth in Article C(15) below for breach of contract or otherwise.
If we suspend, prohibit or block your access to the Services or any part of the Services, you must not take any action to circumvent such suspension, prohibition or blocking (including creating and/or using a different account).
(6) Third-Party Websites
(7) Intellectual Property
The Services are licensed and not sold. ShiftWear reserves to itself all rights not expressly granted to you in these Terms and Conditions. The Services are protected by patent, copyright, trademark, trade secret and other intellectual property laws. ShiftWear owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in and to the Services and all copies of the content which comprise the Services.
For the purposes of these Terms and Conditions, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. “SHIFTWEAR”, our logo, and all derivations or iterations of them (collectively, “ShiftWear Marks”) are trademarks or trade names belonging to us. These Terms and Conditions do not grant you any rights to the ShiftWear Marks. We give no permission for the use of the ShiftWear Marks, and any such use may constitute an infringement of our rights. Any other registered and unregistered trademarks or service marks displayed on the Website or in any App(s) are the property of their respective owners. Unless stated otherwise, we do not endorse and are not affiliated with any of the holders of any such rights and as such we cannot grant any license to exercise such rights.
(8) Revision of Terms and Conditions
We may revise these Terms and Conditions from time-to-time. Revised Terms and Conditions will apply to your use of the Services from the date of the publication on our Website of the revised Terms and Conditions. We reserve the right, in our sole discretion, to add, remove, or modify features of the Services at any time for any reason without liability to you. We may change, modify, add, or remove portions of these Terms and Conditions at any time by making such modified terms available to you on the Website or through the App(s), or both. The most recent date of revision will be identified at the bottom of the Terms and Conditions. No modifications to these Terms and Conditions will apply to any dispute between you and ShiftWear which arose prior to the date of such modification. Your use of the Services after the publication of the revised Terms and Conditions constitutes your binding acceptance of such changes. You agree that if you are dissatisfied with these Terms and Conditions, or any modification therein, your sole and exclusive remedy is to discontinue any use of the Services.
We may transfer, subcontract or otherwise deal with any or all of our rights and/or obligations under these Terms and Conditions without notifying you or obtaining your consent – provided that, where you are a consumer with respect to a contract under these Terms and Conditions, we will not transfer our rights and/or obligations under that contract in any way which may serve to reduce the guarantees benefiting you under that contract. You may not transfer, assign, subcontract or otherwise deal with your rights and/or obligations under these Terms and Conditions.
If a provision of these Terms and Conditions is determined by any court or other competent authority (including the arbitrator identified in Article C(15) below) to be unlawful and/or unenforceable, such portion shall be deleted and the balance of the provisions will continue in full force and effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
(11) Third-Party Rights
These Terms and Conditions are for the benefit of you and us, and except as otherwise expressly set forth herein are not intended to benefit any third party or be enforceable by any third party. The exercise of our and your rights in relation to these Terms and Conditions is not subject to the consent of any third party.
(12) Entire Agreement
These Terms and Conditions constitute the entire agreement between you and us in relation to your use of the Services and supersede all previous agreements with respect to your use of the Services.
(13) Law and Jurisdiction
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New York and the United States, and any disputes relating to these Terms and Conditions will be subject to the non-exclusive jurisdiction of the courts located in Rockland County, New York, U.S.A.
(15) Dispute Resolution – Agreement to Arbitrate
(i) Contact ShiftWear First. If a dispute arises between you and ShiftWear, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and ShiftWear arising from the Services may be reported to ShiftWear’s customer service by email at email@example.com.
(ii) Agreement to Arbitrate. You and ShiftWear each agree that any and all disputes or claims that have arisen or may arise between you and ShiftWear shall be resolved exclusively through final and binding single arbitration with a single arbitrator, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
(iii) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND SHIFTWEAR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SHIFTWEAR AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS OF THE SERVICES.
(iv) Arbitration Procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator also must follow the terms of these Terms and Conditions as a court would. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Article C(15). The AAA’s rules and a form for initiating arbitration proceedings are available on the AAA’s website at http://www.adr.org. For consumer claimants (i.e., individuals whose transaction is intended for personal, family, or household use), the arbitration shall be held in the county which you designated as your place of residence during your registration with ShiftWear, or at another mutually agreed location. For all other claimants, the arbitration shall be held in the County of Rockland, New York, or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or ShiftWear may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and ShiftWear subject only to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or ShiftWear, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(v) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Article C(15). You and ShiftWear will each pay their own costs and expenses. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse ShiftWear for all fees associated with the arbitration paid by ShiftWear on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
(vi) Exceptions to Arbitration. Notwithstanding anything which could be interpreted to the contrary herein, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.