ShiftRight Terms of Service

 

Welcome, and thank you for your interest in ShiftRight Inc (“ShiftRight,” “we,” or “us”) and our website at shiftright.ai, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and ShiftRight regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY TOGGLING OR CLICKING THE BUTTON TO SHOW YOUR ASSENT, OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SHIFTRIGHT AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SHIFTRIGHT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18.)

1.   ShiftRight Service Overview

ShiftRight’s platform provides information on security products and services available in the market (“Third-Party Security Products”). The platform includes the ability for vendors of Third-Party Security Products to share information about their own products and services and for consumers of Third-Party Security Products to share reviews and view information posted and shared by other users regarding the Third-Party Security Products, and the ability for certain users to track the budget, coverage, usage, efficacy and utilization of their security tools. From time to time, we may provide additional tools via the Service, including subscription based services.

2.   Eligibility

You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

3.   Accounts and Registration

To access certain features of the Service, you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, business information (if applicable) or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, You are solely responsible for maintaining the confidentiality of your account, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at info@shiftright.ai.

4.   General Payment Terms

Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.

Price. ShiftRight reserves the right to determine pricing for the Service. ShiftRight will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. ShiftRight may change the fees for any feature of the Service, including additional fees or charges, if ShiftRight gives you advance notice of changes before they apply. ShiftRight, at its sole discretion, may make promotional offers with different features and different pricing to any of ShiftRight’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

Authorization. You authorize ShiftRight to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by ShiftRight, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, ShiftRight may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

4.1           Subscription Service.  The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”) and will automatically renew for immediately successive subscription periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, you authorize ShiftRight or its third party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date for the accrued sums. Your account will be charged automatically on the Subscription Billing Date and periodically thereafter (in accordance with the billing frequency corresponding to the Subscription Service that you have activated) for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. ShiftRight or its third party payment processor will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by contacting us at: support@shiftright.ai. Cancellation of the Subscription Service will be effective at the end of the then-current Subscription Period.

Delinquent Accounts. ShiftRight may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.

5.  Use of the Service

Limited Access and Use. Subject to your complete and ongoing compliance with these Terms, you may access and use the Service on a personal, non-commercial, limited, and non-exclusive basis.

Data Tracker. We may make available to you a proprietary software component that allows for tracking and collection of certain data, including User Data (as defined below) (“Data Tracker”). If you opt to use the Data Tracker, you may download, implement and embed the Data Tracker solely in connection with your use of the Service.

Use Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.

Feedback License. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.

6.  Ownership; Proprietary Rights.

The Service is owned and operated by ShiftRight. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software (including the Data Tracker), services, and all other elements of the Service (“Materials”) provided by ShiftRight are protected by intellectual property and other laws. All Materials included in the Service are the property of ShiftRight or its third party licensors. Except as expressly authorized by ShiftRight, you may not make use of the Materials. ShiftRight reserves all rights to the Materials not granted expressly in these Terms.

7.   Third-Party Terms

Third-Party Services and Linked Websites. We may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on the Service with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that ShiftRight may transfer that information to the applicable third-party service. Third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content or availability.

Third-Party Security Products. The Service may provide information about or links to Third-Party Security Products and such Third-Party Security Products’ vendors. Your purchase and/or use of any Third-Party Security Product may be subject to terms of the vendor of that product, which are between you and the vendor only. You understand that ShiftRight does not sell, deliver, manufacture, or inspect any of the Third-Party Security Product nor is ShiftRight responsible for any information provided regarding such Third-Party Security Products. ShiftRight does not make any warranties about the accuracy, quality, safety, or legality of any Third-Party Security Products or information provided with respect thereto. You are solely responsible for any decision to purchase and/or use the Third-Party Security Products. Any legal claim related to Third-Party Security Products you purchase and/or use must be brought directly against the vendor of the product.

Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

8.  User Content

User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works, including those in your profile (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.

Limited License Grant to us. By providing User Content to or via the Service, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. The Service may allow you to delete your account and User Content. However, you acknowledge and agree that it may take up to 6 months for us to completely remove your User Content from the Service. Until such time that your User Content is removed from the Service, your User Content may remain visible and accessible by other users of the Service and the licenses you grant under this Section 8 will remain effective notwithstanding any termination of these Terms.

Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

User Content Representations and Warranties. ShiftRight disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:

a.         you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize ShiftRight and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by ShiftRight, the Service, and these Terms;

b.         your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) violate any laws or regulations, including unfair competition and false advertising laws, and advertising guidelines published by the Federal Trade Commission; or (iv) cause ShiftRight to violate any law or regulation; and

c.          your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

User Content Disclaimer. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content, including without limitation information provided regarding Third-Party Security Products (such as product descriptions or reviews), may be inaccurate, offensive, indecent, or objectionable. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, subject to our obligations under Section 12, which we reserve the right to do at any time and without notice. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against ShiftRight with respect to User Content. For clarity, ShiftRight does not permit copyright-infringing activities on the Service.

Monitoring Content. ShiftRight does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that ShiftRight reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time ShiftRight chooses to monitor the content, ShiftRight still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

Data License

User Data. By using the Service and uploading, submitting, or otherwise transmitting to the Service any data or information, including via the Data Tracker (collectively, “User Data”), you hereby grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to: (i) store your User Data; and (ii) use your User Data in an aggregated and anonymized manner to provide and improve our products and services, including any paid services.

Personal Information. Any personal information contained in your User Data will be collected and used in accordance with our Privacy Policy.

Communications. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the instructions on how to unsubscribe in the promotional email itself.

Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

d.     use the Service for any illegal purpose or in violation of any local, state, national, or international law;

e.     harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;

f.      violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

g.     interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

h.     interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, including by imposing a disproportionately large load or using an unreasonable amount of bandwidth;

i.       perform any of the following activities: (i) deep-link to any portion of the Service; (ii) frame, mirror, or otherwise simulate any portion of the Service; or (iii) access the Service with any robot, spider, scraper, or other automated means;

j.       perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other Service account without permission;

k.     post reviews on products or services offered by your current employer or by direct competitors of your current employer;

l.       collect, copy, download, use, or process any information obtained from the Service except as expressly permitted under these Terms or by the owner of that information;

m.   sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials;

n.     use the Service or Materials for any commercial purpose without our express written permission; or

o.     attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.

9.  Digital Millennium Copyright Act

DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about materials posted on the Service, you may contact our Designated Agent at the following address:

ShiftRight Inc
ATTN: Legal Department (Copyright Notification)
1367 S Blaney Ave,
San Jose, CA 95129
408-242-6482
Email: support@shiftright.ai

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

a.         an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

b.         a description of the copyrighted work or other intellectual property that you claim has been infringed;

c.          a description of the material that you claim is infringing and where it is located on the Service;

d.         your address, telephone number, and email address;

e.         a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and

f.           a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Repeat Infringers. We will promptly terminate the accounts of users that are determined by us to be repeat infringers in accordance with our repeat infringer policy.

10.   Modification of these Terms

We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

11.   Term, Termination and Modification of the Service

Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.

Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminates. In addition, ShiftRight may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@shiftright.ai.

Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay ShiftRight any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8, 9, 14.3, 15, 16, 17, 18 and 19 will survive.

Modification of the Service. ShiftRight reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. ShiftRight will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. However, if ShiftRight modifies the Service in a manner that adversely affects a main functionality of the level of service or product that you subscribed to, ShiftRight may, in its sole discretion, issue a pro rata refund of any fees pre-paid for that service or product.

12.   Indemnity

To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify ShiftRight and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “ShiftRight Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including a vendor or consumer of any Third-Party Security Product. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

13.   Disclaimers; No Warranties

THE SERVICE AND ALL MATERIALS (INCLUDING THE DATA TRACKER) AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SHIFTRIGHT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SHIFTRIGHT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SHIFTRIGHT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR VIA THE SERVICE OR SHIFTRIGHT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SHIFTRIGHT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. ANY REVIEW MADE AVAILABLE ON OR VIA THE SERVICE OR RECOMMENDATION GENERATED BY A TOOL ON THE SERVICE IS A STATEMENT OF OPINION ONLY, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SECURITY PRODUCTS THAT YOU LEARN ABOUT ON THE SERVICE (FOR EXAMPLE, THAT IT WILL ACHIEVE A CERTAIN RESULT OR BE SUITABLE FOR YOUR PURPOSE). SHIFTRIGHT DISCLAIMS ANY RESPONSIBILITY FOR ANY LOSS OR HARM CAUSED IN CONNECTION WITH OR RESULTING FROM A USER OR ANY THIRD PARTY’S USE OF OR RELIANCE ON THE SERVICE, INCLUDING ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BASED ON THE INFORMATION MADE AVAILABLE BY THE SERVICE, SUCH AS ANY RECOMMENDATION GENERATED BY A TOOL ON THE SERVICE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

YOU PURCHASE AND USE ANY THIRD-PARTY SECURITY PRODUCT AT YOUR OWN RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE THIRD-PARTY PRODUCTS. PLEASE CAREFULLY REVIEW ANY TERMS PROVIDED BY THE RELEVANT VENDOR THAT MAY APPLY TO YOUR PURCHASE AND USE OF A THIRD-PARTY SECURITY PRODUCT. WE ARE NOT RESPONSIBLE FOR ANSWERING ANY QUESTIONS OR RESOLVING ANY ISSUES, SUCH AS WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SECURITY PRODUCT. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE RELATED TO  YOUR USE (OR THE DECISION NOT TO USE) ANY THIRD-PARTY SECURITY PRODUCT, INCLUDING WITHOUT LIMITATION, ANY SECURITY OR DATA BREACH.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. ShiftRight does not disclaim any warranty or other right that ShiftRight is prohibited from disclaiming under applicable law.

14.   Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SHIFTRIGHT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SHIFTRIGHT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SHIFTRIGHT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO SHIFTRIGHT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15.   Dispute Resolution and Arbitration

Generally. In the interest of resolving disputes between you and ShiftRight in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and ShiftRight agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SHIFTRIGHT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to ShiftRight Inc, Attention: Legal Department – Arbitration Opt-Out, 1367 S Blaney Ave,, San Jose, CA 95129 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once ShiftRight receives your Opt-Out Notice, this Section18will be void and any action arising out of these Terms will be resolved as set forth in Section19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

Arbitrator. Any arbitration between you and ShiftRight will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting ShiftRight. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). ShiftRight’s address for Notice is: ShiftRight Inc, 1367 S Blaney Ave,, San Jose, CA 95129. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or ShiftRight may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or ShiftRight must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by ShiftRight in settlement of the dispute prior to the award, ShiftRight will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

Fees. If you commence arbitration in accordance with these Terms, ShiftRight will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse ShiftRight for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

No Class Actions. YOU AND SHIFTRIGHT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ShiftRight agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Modifications to this Arbitration Provision. If ShiftRight makes any future change to this arbitration provision, other than a change to ShiftRight’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to ShiftRight’s address for Notice of Arbitration, in which case your account with ShiftRight will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if ShiftRight receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.

16.   Miscellaneous

General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and ShiftRight regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and ShiftRight submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

Privacy Policy. Please read the ShiftRight Privacy Policy https://shiftright.ai/privacy carefully for information relating to our collection, use, storage, disclosure of your personal information. The ShiftRight Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Contact Information. The Service is offered by ShiftRight Inc, located at 1367 S Blaney Ave,, San Jose, CA 95129. You may contact us by sending correspondence to that address or by emailing us at info@shiftright.ai.

Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.

 

Last Updated: 8/7/20