These Terms of Service are effective on September 1, 2008, for both current users and upon acceptance for new users.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS SITE OR SIGNING UP FOR SERVICES
1. Acknowledgement and Acceptance of Terms of Service
This Agreement is between you ("you", "your"), as an authorized user of the Services, and ShiftHound, Inc., a California corporation (the "Company" or "we"). For purposes of this Agreement, "Services" is defined as any and all services provided by the Company to you either now or in the future and "ShiftHound account" is defined as the account through which you access the Services.
These Terms of Service, together with any operating rules, policies, price schedules or other supplemental documents published from time to time by the Company (collectively, the "Agreement"), constitutes the entire agreement between the Company and you regarding the Services, and supersedes all prior agreements between the Company and you regarding the subject matter of this Agreement. By using the Services, you confirm your acceptance of, and agree to be bound by, this Agreement. If you are using the Services on behalf of your employer, you represent that you are authorized to accept this Agreement on your employer's behalf. You further agree and acknowledge that these are general Terms of Service and any written agreement executed directly with the Company and not via the ShiftHound Website supersedes any and all terms or provisions set forth herein.
2. Modifications to this Agreement and to the Services
The Company may automatically amend this Agreement at any time by posting a revised Agreement on the ShiftHound Website and, if the amendments are considered material as determined in the sole discretion of the Company, by sending information regarding the amendment to the email address you provide to the Company. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE SHIFTHOUND WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. In addition to the foregoing, this Agreement may be amended in a written agreement signed by both you and the Company. The Company reserves the right to modify or discontinue any of the Services with or without notice to you and the Company shall not be liable to you or any third party should the Company exercise its right to do so.
The Company offers the Services at its Website www.ShiftHound.com (together with other Websites owned and operated by the Company, the "ShiftHound Website"). Individually, the Services are:
a. Open Shift Management: Open Shift Management (referred to herein as "OSM")
b. Scheduling: Scheduling (referred to herein as "Scheduling")
5. Your Responsibilities
You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Services; (b) maintain any security of your user identification, and other confidential information relating to your ShiftHound account and; (c) be responsible for all charges resulting from use of your ShiftHound account, including unauthorized use prior to your notifying the Company of such use and taking steps to prevent its further occurrence.
b. User Account, Password, and Security
As part of your registration process, you will be required to provide a valid email address and select a password. Once you become a registered user, your ShiftHound account information will be automatically sent to you by email. You may change your password to protect your account after logging in to the ShiftHound Website. You are entirely responsible for notifying the Company of any change in your email address and for failing to maintain the confidentiality of your password and account information. Furthermore, you are entirely responsible for any and all activities that occur under your ShiftHound account. You agree to immediately notify the Company of any unauthorized use of your ShiftHound account or any other breach of security known to you.
c. Content of Transmissions
You are fully responsible for the contents of your transmissions through the Services. The Company simply acts as a passive conduit for you to send and receive information of your own choosing.
d. Prohibited Conduct
Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws or false advertising). You agree: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Services; (2) not to use the Services for illegal purposes; (3) not to interfere or disrupt networks connected to the Services; (4) to comply with all regulations, policies and procedures of networks connected to the Services; (5) not to use the Services to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind of nature; (7) not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any other use of distribution lists to any person who has not given specific permission to be included in such a process;, (8) not to use the Service to attempt to gain unauthorized access to other computer systems; and (9) not to interfere with another's use and enjoyment of the Services or similar services.
6. Disclaimer of Warranties
THE COMPANY AND ITS SOFTWARE AND SERVICES ARE PROVIDED "AS IS," AND NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS ("PROVIDERS") MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY OR COMPLETENESS. NEITHER THE COMPANY NOR ITS PROVIDERS WARRANT THAT ACCESS TO OR USE OF THE COMPANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES OR SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
7. Limitation of Liability
YOUR USE OF THE COMPANY SOFTWARE AND SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING COMPANY SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY. YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY COMPANY SOFTWARE OR SERVICES. NEITHER THE COMPANY NOR ANY OF ITS SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES WHETHER WITHIN OR OUTSIDE THE COMPANY'S OR ANY SUCH SERVICE PROVIDER'S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF SERVICES.. YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO THE COMPANY SOFTWARE AND SERVICES AS SET FORTH HEREIN, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE COMPANY SERVICES AND SOFTWARE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE COMPANY SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S. $500.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
You agree to pay all charges for your use of the Services at the prices then in effect for your plan. The Company reserves the right to charge value-added taxes ("VAT"), sales or other taxes on the Services as it deems appropriate and the Company reserves the right to change prices or institute new charges for access to or use of the Services. All pricing changes will be sent to you by email and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of the Services or non-termination of your ShiftHound account after changes are sent constitutes your acceptance of the prices as modified by the prices sent.
Payment of your ShiftHound account balance is due monthly or annually, in accordance with your payment plan, the currency in which it is billed, and must be made by the credit or debit card (hereinafter "credit card" will refer to both credit and debit cards) designated by you for ShiftHound use and transactions or through other methods, including monthly invoicing (if you meet certain criteria) or pre-payment by check or credit card. If your ShiftHound account is a qualified business account and is approved by the Company for corporate billing, charges will be accumulated, identified by Customer identification number and invoiced on a monthly basis. Your activation fee and monthly or annual service fees, as applicable, are payable in advance and are COMPLETELY NON-REFUNDABLE. You agree that the Company may submit charges for your annual service fee annually and for your monthly service fee monthly, plus all applicable usage fees, in each case, without further authorization from you, until you provide prior notice (in accordance with the Company's verification procedures, as may be established by the Company from time to time in its sole discretion) ("Verification Procedures") that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before the Company reasonably could act on your notice. Failure to use your account will not be deemed a basis for refusing to pay any charges. If you have any questions regarding any charges that have been applied to your ShiftHound account, you must contact Customer Service within thirty (30) days of the charge date.
b. Credit Card Payments
Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that the Company is authorized to charge your designated card. If the credit card payment is not received by the Company from the card issuer (or its agent or affiliate), you agree to pay all amounts due upon demand by Company. Your card issuer's agreement governs your use of your designated card, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You are responsible for overdraft fees and all other fees charged by your card issuer. You agree that the Company may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charges. This means that accumulated charges may appear on the statement you receive from your card issuer.
c. Pre-Paid Discounts
If you subscribed for a Service pursuant to a special offer granting a pre-paid discount for a fixed term, your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your initial service fee for the next term immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD LIMIT and will be immediately charged to your credit card, without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Verification Procedures) that you have terminated this authorization. Such notice will not affect charges submitted before the Company could reasonably act on your notice.
d. Providing Notification to Company
You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated credit card and (b) your billing address for the designated credit card. You must also promptly notify the Company if your card is canceled (e.g., for loss or theft).
10. Termination or Suspension
a. By You
You may terminate your ShiftHound account at any time, with or without cause, upon notice. In order for you to give such notice to the Company that you want to terminate, you must contact Customer Service at 1-888-SHIFTRX (744-3879). A Customer Service representative will assist you with terminating your account in accordance with the Company's Verification Procedures. Upon termination of your account, the Customer Service representative will provide you with a cancellation number. Your account will not be deemed terminated unless and until you receive the cancellation number.
b. By the Company
The Company may terminate or suspend your ShiftHound account at any time, with or without cause, upon notice. The Company reserves the right to do so without prior notice, provided that the Company will attempt to confirm such termination or suspension by subsequent notice. In addition, the Company reserves the right to suspend or terminate your ShiftHound account without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company. The Company reserves the right to limit use of the Services or to terminate any account if we believe unreasonable usage has occurred on such account or if the Services are used in a manner that is not permitted by this Agreement. If your account is suspended or terminated and the Company later reactivates your account, the Company may charge you a re-activation fee. The Company also reserves the right to take any action with respect to the Services that it deems necessary or appropriate in its sole discretion if the Company believes you or your information may create liability for the Company, compromise or disrupt the Services for you or others or cause the Company to lose (in whole or in part) the services of the
The termination and suspension provisions contained in this Section 10 apply only to agreements formed between you and Company via the ShiftHound Website.
11. ShiftHound Legal
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Service are wholly owned by the Company and/or its service providers except where expressly stated otherwise. You may not use the Company's trademarks, trade names, patents, copyrights or other intellectual property rights without the Company's prior written permission.
You agree to indemnify and hold harmless the Company and each of its licensors and service providers from and against any and all liabilities, expenses (including attorneys' fees) and damages arising out of claims based upon use of your ShiftHound account, including any violation of this Agreement by you or any other person using your account; any claim of libel, defamation, violation of rights of privacy or publicity; any loss of service by other customers; any infringement of intellectual property or other rights of any third parties; or any violation of any laws or regulations prohibiting transmission of unsolicited faxes or emails.
13. No Resale, Assignment Or Transfer Of The Services
Your right to use the Services is personal to you. You agree not to resell, assign or in any other manner transfer your use of the Services without the written consent of the Company.
14. Participation In Promotions Of Advertisers
You may enter into correspondence with or participate in promotions of advertisers showing their products on the Services. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. The Company assumes no liability, obligation or responsibility for any part of such correspondence or promotion.
15. Notices; Consent
Notices given by the Company to you will be given by email, by a general posting on the ShiftHound Website or by conventional mail. Notices given by you to the Company must be given by email or by conventional mail (subject, however, to the Company's Verification Procedures, which may include the requirement that you contact the Company by phone to confirm that any such notice was in fact sent by you). Notices to the Company by conventional mail must be sent to:
500 W. Harbor Dr. #1601
San Diego, CA 92101
In any matter requiring the Company's prior consent, such consent will be considered given only if made in writing by an authorized representative of the Company.
16. General Terms
THE LAWS OF THE STATE OF CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF THE COMPANY SOFTWARE AND SERVICES. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. YOU EXPRESSLY AGREE THAT EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF THE COMPANY SOFTWARE OR SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA LOCATED IN LOS ANGELES COUNTY. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Company's failure to act with respect to a breach by you or others does not waive the Company's right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company's reasonable control. Parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of email or other messages as provided as part of the Services.
17. Consumer Rights
Under California Civil Code Section 1789.3, California Customers are entitled to the following specific consumer rights information:
a. Pricing Information. Current rates for using the Service may be obtained by calling Customer Service. The Company reserves the right to change recurring or usage fees and surcharges or to institute new fees at any time, as provided for in the Section entitled "Modifications to this Agreement and to the Services" above.
b. Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
18. LEGAL NOTICES
a. Trademark Information
ShiftHound, among others, are trademarks or registered trademarks of the Company in the United States and other countries.
The Companyâ€™s' trademarks may be used publicly only with written permission from the Company. Fair use of the Companyâ€™s' trademarks in advertising and promotion of the Company's services requires proper acknowledgement.
b. Single Copy License
The materials at the ShiftHound Site, www.ShiftHound.com and the web pages within it (the "Site"), are copyrighted and any unauthorized use of such materials may violate copyright, trademark and other laws. You may use one copy of the information or software ("Materials") found on the Site on a single computer for your personal, non-commercial internal use only unless specifically licensed to do otherwise by the Company in writing or as allowed by any license terms which accompany or are provided with individual Materials. This is a license, not a transfer of title, and is subject to the following restrictions. You may not:
1. Modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental;
2. Decompile, reverse engineer or disassemble software Materials except and only to the extent permitted by applicable law;
3. Remove any copyright or other proprietary notices from the Materials;
4. Transfer the Materials to another person. You agree to prevent any unauthorized copying of the Materials.
c. Termination of this License
The Company may terminate this license at any time if you are in breach of the terms of this Agreement. Upon termination, you will immediately destroy the Materials.
d. Ownership of Materials
Materials are copyrighted and are protected by worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted or distributed in any way without the Company's prior written permission. Except as expressly provided herein, the Company and its suppliers do not grant any express or implied right to you under any patents, copyrights, trademarks or trade secret information. Other rights may be granted to you by the Company in writing or incorporated elsewhere in the Materials.
Links provided on the Site are provided solely as a convenience to you and the provision of any such link does not constitute our endorsement of the linked website or its provider or of any of the content, products or services contained or offered therein. Your use of linked websites is subject to the conditions, if any, that each of those websites has posted. You agree that the Company is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the contents, products, Services or any transmissions received through such websites. You further agree that the Company has no liability whatsoever from such third party websites and your usage of them.
THE MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCENTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Company and its suppliers further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within these Materials. The Company may make changes to these Materials, or to the services described therein, at any time without notice. The Company makes no commitment to update the Materials.