To use the Site or the Application (all capitalized terms are as defined herein), you must read and accept the terms and conditions contained in, linked to, and/or incorporated by reference in these Terms and Conditions, all of which shall constitute the Agreement between you and Shyft. By accessing or using the Site or the Application or contracting for the Services and/or by downloading, installing or using the Application to obtain the Services, you agree to be bound by the Terms of this Agreement. Shyft may change the Terms from time to time at its discretion and such changes shall become effective upon posting of an updated version of the Terms on the Site or the Application. Shyft may attempt to provide you notice of such changes through other reasonable means as it deems necessary. You agree to check the Terms and Conditions each time you access the Site or the Application, and your use of the Site or the Application or the Services after notification by such posting of any amended Terms on the Site or the Application constitutes your agreement to be bound by the amended Terms.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND Shyft AND CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
1. “App Store Application” shall mean the Application downloaded through the Apple® App Store
2. “Application” shall mean the application program developed by Shyft and using the Software to enable Users to obtain Services and associated assistance from Shyft and/or from other service providers who have agreed to make Services provided by them available to Users through the Application.
3. “DMCA” means Digital Millennium Copyright Act of 1998, as amended.
4. “Google Play Application” shall mean the Application downloaded by using Google PlayTM.
6. “Registration Data” shall mean the information you voluntarily provide as prompted by the registration forms on the Application to allow you to gain access the Services through the Application or the Site. You agree that all such information provided shall be accurate, current, and complete.
N. “Services” shall mean use of the Site or the Application by you and shall include obtaining information about or contracting to obtain any service or product accessed through the Site or the Application whether provided by Shyft or provided by other persons or entities who have agreed to make Services provided by them available to Users through the Application or the Site or through Third-Party Sites accessed through the Site or the Application.
N. “Shyft” shall mean Shyft Moving Inc., a Delaware corporation, and its subsidiaries and affiliates, collectively referred to herein as “Shyft.”
7. “Site” shall mean the internet website created and hosted by Shyft or the Application.
8. “Site Content” shall mean the designs, text, graphics, pictures, photographs, video, information, applications, software, music, sound and other files, and their selection and arrangement on the Site
9. “Software” means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task. All software is classified as either pre-written or custom. Consistent with this definition “Software” includes only those sets of coded instructions intended for use by an end user and specifically excludes retained rights in software and master copies of software.
10. “Submissions” shall have the meaning given to such term in Section 11.
11. “Terms” shall mean all of the terms, conditions and other provisions contained in this Agreement, which may be amended from time to time.
12. “Third Party Sites” shall mean web sites other than this Site not owned or operated by Shyft.
13. “Usage Rules” shall have the meaning given to such term in Section 11.
14. “User” shall have the meaning given to such term in the Preamble.
15. “User Content” shall have the meaning given to such term in Section 11.
General Terms and Conditions.
THE SERVICES ARE NOT INTENDED FOR OR AVAILABLE TO PERSONS UNDER THE AGE OF 18 YEARS OR TO ANY PERSON SUSPENDED OR REMOVED FROM THE SERVICE. BY USING THE SERVICE OR THE APPLICATION, YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE. NOTICE: IF YOU ARE UNDER 18 YEARS OF AGE OR YOU ARE OTHERWISE PROHIBITED FROM LAWFULLY GAINING ACCESS TO THE SERVICES BY PROVIDING FALSE INFORMATION OR OTHERWISE MAY BE EXPOSING YOURSELF AND OTHERS TO CIVIL AND CRINMINAL LIABILITY.
2.1. This Agreement will remain in full force and effect while you use the Site or Application or have a registered account with us. We may terminate your account, delete your profile and any content or information that you have posted on the Site or Application and prohibit you from using or accessing the Site (or any portion, aspect or feature of the Site or Application) or using the Services or Application for any reason, or for no reason, at any time in our sole discretion, with or without notice, including if we believe that you are under 18 years of age. You may terminate your account at any time for any reason by terminating your use of the Site, the Application, and the Services and deleting your account profile. We reserve the right to retain your Registration Data and User Content for record-keeping and other legitimate purposes.
2.2. If either party materially breaches any of the Terms and such breach is not cured, or the breaching party is not diligently pursuing a cure within fifteen (15) calendar days after written notice of the breach, then the non-breaching party may terminate this Agreement for cause.
2.3. Upon expiration or earlier termination of this Agreement, each party shall: (a) promptly return to the other party, or certify the destruction of any of the following of the other party held in connection with the performance of this Agreement or the Services: (i) all Confidential Information; and, (ii) any other data, programs, and materials; and, (b) return to the other party, or permit the other party to remove, any properties of the other party then situated on such party’s premises. In the case of Customer Data, Shyft will provide you with a final export of the Customer Data and shall certify the destruction of any Customer Data within the possession of Shyft. The parties agree to work in good faith to execute the foregoing in a timely and efficient manner. This Section shall survive the termination of this Agreement.
2.4. Upon termination, you agree that Shyft will not be liable for refund of any unused credit card deposit unless the Software or Other Services have been proven to be defective or Shyft fails to provide Services for which it has contracted with you.
2.5. Sections 7, 9, 13, 17,18, 19, 20 and 21 survive the expiration or termination of the Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
3. Registration Data; Account Security.
You agree to: (a) provide accurate, current, and complete information about yourself as may be prompted by any registration forms on the Site or Application (“Registration Data”) designed to assist you in obtaining the Services; (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other material information you have provided to Shyft to keep such information accurate, current and complete; (d) not allow any person to use of your account or obtain unauthorized access to the Site or Application, and (e) be fully responsible for all consequences resulting from the use of your account or as a result of unauthorized access obtained to the Site or the Application through your account.
4. Service Implementation, Use and Limitations.
4.1. You agree to use the Software only through our Site or Application and Shyft reserves approval authority as to the implementation and use of the Software on the Site. Shyft may suspend the Software in the event we find implementation issues with the Site. Such suspension shall remain in effect until you correct any issues specified by Shyft for which you may be responsible.
4.2. Shyft shall make reasonable efforts to keep the Software operational 24 hours a day, 7 days a week, except for (i) planned downtime (of which we will provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control which materially affect Shyft’s ability to operate the Site or the Application, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
5. Email Communications.
By providing Shyft your email address with your Registration Data, you consent to our use of the email address to send you Services-related email, including any notices required by law, in lieu of communication by postal mail. You may not opt out of Services-related emails.
7. Non-Disclosure of Confidential Information.
7.1. You and Shyft acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. You and Shyft acknowledge that Confidential Information (as defined below) is a valuable, special, and unique asset of each party and agree that both parties will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any Confidential Information for any purpose other than disclosure to each other’s authorized employees and agents who are bound to maintain the confidentiality of the Confidential Information and only as necessary to further the purposes of the Agreement. Each party shall notify the other in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Both parties shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer, or use. Both parties shall return all originals and copies of materials containing Confidential Information upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” means any and all of each party’s trade secrets, proprietary information and all other information and data of both parties that is not generally known to the public or other third parties who could derive economic value from its use or disclosure, including, but not limited to, the Software.
7.2. The parties agree to hold all Confidential information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential.
7.3. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
8. Prohibited Conduct.
8.1. User has a nonexclusive, nontransferable, limited, and revocable right to use the Site or Application solely for the User’s personal, non-commercial use unless otherwise agreed by Shyft in writing. A User will not use the Site or Application for any other purpose, including any commercial purpose (except as expressly stated herein), without Shyft’s express prior written consent.
8.2. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Site or Application will violate or infringe upon the rights of any third party, including all copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You also agree to use the Site or Application in a manner consistent with any and all applicable laws and regulations.
8.3. You further agree not to:
8.3.1. use the Site or Application or to authorize any other person to use the Site or Application to cause the Site or Application, or any portion thereof, to be framed in such a way that the Site or Application, or any portion thereof, appears on the same screen with a portion of another website;
8.3.2. harvest or collect email addresses or other contact information of other users from the Site or Application by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
8.3.3. use the Site or Application in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Site or Application;
8.3.4. use automated scripts to collect information from or otherwise interact with the Site or Application;
8.3.5. upload, post, transmit, share, store or otherwise make available any content that Shyft deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable;
8.3.6. impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
8.3.7. upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
8.3.8. upload, post, transmit, share, store or otherwise make publicly available on the Site or Application any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
8.3.9. solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
8.3.10. upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
8.3.11. intimidate or harass another;
8.3.12. upload, post, transmit, share, store, or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
8.3.13. use or attempt to use another’s account, service or system without authorization from Shyft, or create a false identity on the Site or Application; or
8.3.14. upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Shyft, is objectionable or which restricts or inhibits any other person from using or enjoying the Site or Application, or which may expose Shyft or its users to any harm or liability of any type.
9. Proprietary Rights in Site Content; Limited License; Application License.
9.1. Proprietary Rights. You acknowledge and agree that all content on the Site or the Application, including designs, text, graphics, pictures, photographs, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the property of Shyft, its content providers, and/or their respective owners, and that Shyft, its content providers, and/or the respective owners, retain all rights, title, and interest in the Site Content. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without Shyft’s prior written permission, except that the foregoing does not apply to the User Content (as defined below) that the User legally posts on the Site or Application.
9.2. Limited License. Provided that you are eligible to use the Site or Application, you are granted a limited license to access and use the Site or Application and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal use, provided that you keep all copyright, trademark, service mark, or other proprietary notices intact. Except for User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet Site or incorporate any Site Content in any other database or compilation, and any other use of the Site Content is strictly prohibited. The license granted by this Agreement does not permit the use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site or Application or the Site Content other than as specifically authorized herein, without the prior written permission of Shyft, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license is revocable at any time without notice and with or without cause.
9.3. Application License. Subject to your compliance with this Agreement, Shyft grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run that copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Application”) or using Google Play (“Google Play Application”), you will use the App Store Application only on an Apple-branded product that runs iOS (Apple’s proprietary operating system software), and the Google Play Application only on an Android operated device, in each case, subject to and as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service or the Google Play Terms of Service, as applicable. Shyft reserves all rights in and to the Application not expressly granted to you under this Agreement.
9.4. Accessing and Downloading the Application from Apple App Store or using Google Play. The following applies to any App Store and Google Applications:
9.4.1. You acknowledge and agree that (i) this Agreement is concluded between you and Shyft only, and not with Apple or Google, as applicable, and (ii) Shyft, not Apple or Google, is solely responsible for the App Store or Google Play Application and content thereof. Your use of the App Store or Google Play Application must comply with the applicable Terms of Service.
9.4.2. You acknowledge that neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to an App Store or Google Play Application.
9.4.3. In the event of any failure of the App Store or Google Play Application to conform to any applicable warranty, you may notify Apple or Google, as applicable, and Apple or Google will refund the purchase price for the App Store or Google Play Application to you and to the maximum extent permitted by applicable law, neither Apple nor Google will have any other warranty obligation whatsoever with respect to the App Store or Google Play Application. As between Shyft and Apple, or between Shyft and Google, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Shyft.
9.4.4. You and Shyft acknowledge that, as between Shyft and Apple, and as between Shyft and Google, neither Apple nor Google is responsible for addressing any claims you have or any claims of any third party relating to the App Store or Google Play Application or your possession and use of the App Store or Google Play Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store or Google Play Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
9.4.5. You and Shyft acknowledge that, in the event of any third party claim that the App Store or Google Play Application or your possession and use of that App Store or Google Play Application infringes that third party’s intellectual property rights, as between Shyft and Apple, and as between Shyft and Google, Shyft, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
9.4.6. You and Shyft acknowledge and agree that Apple and Google, and their respective subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store or Google Play Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google, as applicable, will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
9.4.7. Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store or Google Play Application.
9.4.8. Apple is a registered trademark of Apple Inc. and App Store is a registered service mark of Apple Inc. Android and Google Play are trademarks of Google Inc. IOS is a trademark of Cisco Systems, Inc. in the United States.
10. Export Controls.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Application, you represent and warrant that: (i) you are not located in a country that is subject to a 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.
11. User Content Posted on the Site.
11.1. User Responsibility. You are solely responsible for the photos, profiles (including your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Site (collectively the “User Content”). You may not post, transmit, or share User Content on the Site that you did not create or that you do not have permission to post. You understand and agree that Shyft may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of Shyft violates this Agreement, might be offensive, illegal, threatening to the safety of users or others, or might violate the rights of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to Shyft.
11.3. Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site (“Submissions”), provided by you to Shyft are non-confidential and shall become the sole property of Shyft. Shyft shall own exclusive rights (including all intellectual property rights) to, and shall be entitled to the unrestricted use and dissemination of, these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Subject to the limited rights expressly granted hereunder, Shyft reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Software, use of the Software or access to the Software without the express written consent of Shyft. The look and feel of the Software may be subject to copyright protection. Where prohibited by applicable law, you may not duplicate, copy or reuse any portion of the visual design elements without the express written consent of Shyft.
13. Intellectual Property.
13.1. Trademarks. ”Shyft” and other graphics, logos, designs, page headers, button icons, scripts and service names are registered and common law trademarks, service marks or trade dress of Shyft in the U.S. and/or other countries. Shyft’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Shyft. Should you use, cause to be used, or otherwise permit any other party to use Shyft’s trademarks and trade dress without our permission, we reserve the right to seek all available remedies, including by not limited to injunctive relief and/or damages.
13.2. Copyright Infringement and DMCA Policy.
126.96.36.199. You may not post, distribute or reproduce in any way any copyrighted material, trademarks or service marks or other proprietary information owned by another party without obtaining the prior written consent of the copyright owner.
188.8.131.52. As Shyft asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Shyftmoving.com violates your copyright, you are encouraged to notify Shyft at firstname.lastname@example.org. Shyft will respond to all such notices, including as required or appropriate by removing the alleged infringing material or disabling all links to the alleged infringing material. In the case of a visitor who may infringe or repeatedly infringes the copyrights or other intellectual property rights of Shyft or others, Shyft may, in its discretion, terminate or deny access to and use of the Site. In the case of such termination, Shyft will have no obligation to provide a refund of any amounts previously paid to Shyft.
14. Third Party Sites and Content.
14.1. The Site contains (or you may be sent through the Site to) links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to, or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the Site.
14.2. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Shyft.
15.1. Content.Shyft is not responsible or liable in any manner for any User Content or Third Party Applications, Software or Content posted on or accessible through the Site, whether posted or caused by users of the Site, by Shyft, by third parties, or by any of the equipment or programming associated with or utilized in the Site. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit, or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful, or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Applications, Software, or Content. Shyft is not responsible for the conduct, whether online or offline, of any user of the Site.
15.2. Availability and Data Integrity. The Site may be temporarily unavailable from time to time for maintenance or other reasons. Shyft assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications including but not limited to User Content. Shyft is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to User’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the worldwide web and/or in connection with the Site. Under no circumstances will Shyft be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site, any User Content or Third Party Applications, Software or Content posted on or through the Site or transmitted to Users, or any interactions between users of the Site, whether online or offline.
15.3. Viruses and Malware. Shyft does not represent or warrant that software, content or materials on the Site, or any Third Party Applications, Software, or Content are accurate, complete, reliable, current or error-free or that the Site, its servers, or any Third Party Applications, Software or Content are free of viruses or other harmful components. Therefore, you should exercise caution in the use and downloading of any such software, content or materials and use industry-recognized software to detect and disinfect viruses.
Shyft cannot guarantee and does not make any specific promise of any specific results from use of the Site or the Application or the Services and/or any Third Party Applications, Software or Content.
17. Reservation of Rights.
17.1. Shyft reserves the right, solely in its discretion,
17.1.1. to change any and all content, software and other items used or contained in the Site at any time without notice;
17.1.2. modify and/or discontinue the Site at any time without notice;
17.1.3. terminate your username, password and account, should you be in violation of the Terms; and
17.1.4. watch video feeds for quality and training purposes.
17.2. THE SITE AND THE SITE CONTENT ARE PROVIDED “AS-IS” AND Shyft DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
18. Limitation on Liability.
Except for the indemnification obligations of the parties set out in this Agreement, to the fullest extent permitted by applicable law, under no circumstances shall either party be liable to the other party on account of any claim (whether based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, the failure of any remedy to achieve its intended purpose or otherwise) for any special, consequential, incidental or exemplary damages, including but not limited to lost profits, even if the party has been advised of the possibility of such damages, except for indemnification and confidentiality obligations of the parties set our herein, in no event shall either party’s liability exceed an amount equal to the cost per transaction.
19.1. Except for the warranties set forth in this section, Shyft make no representations or warranties about the Software, software support, or accuracy, completeness, or suitability of any of the material contained within the Software and Shyft make no warranty that the Software will be interrupted, error free, free of viruses or other harmful components, or compatible with any hardware or systems software configuration.
19.2. Shyft represent and warrant that the Software does not infringe on any third party intellectual property rights and Shyft will indemnify, defend and hold you harmless against any allegations, claims, causes or action or damages (including court costs and attorney fees) against you for such third party intellectual property violations.
19.3. Shyft represent and warrant that our Software and any service we provide to you do not and will not violate of any applicable federal, state or local statutes, rules or regulations, and we will indemnify, defend and hold harmless you against any allegations, claims, causes or action or damages (including court costs and attorney fees) against you for such violations.
20. Non-Disclosure of Confidential Information.
20.1. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. Both parties acknowledge that Confidential Information (as defined in this Agreement) is a valuable, special, and unique asset of each party and agree that both parties will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any Confidential Information for any purpose other than disclosure to each others authorized employees and agents who are bound to maintain the confidentiality of the Confidential Information. Each party shall notify the other in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Both parties shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer, or use. Both parties shall return all originals and copies of materials containing Confidential Information upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” means any and all of each party’s trade secrets, proprietary information and all other information and data of both parties that is not generally known to the public or other third parties who could derive economic value from its use or disclosure, including, but not limited to, the Software
20.2. The parties agree to hold all Confidential information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential.
20.3. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
Both parties agree that during the Term and for a period of 6-months after any termination, whether with or without cause, they will not, without the express written consent of the other party, directly or indirectly take any action to cause, solicit, encourage, induce, persuade or assist any employee to leave the employment of the other party. This clause incorporates any subsidiary or affiliate or related entity of either party.
22. Indemnification; Release.
You agree to defend, indemnify and hold Shyft harmless from and against any and all liability, loss or damage, cost or expense, including but not limited to court costs, reasonable attorneys’ fees, and any awards or damages caused by, relating to or incident to: (a) your unlawful use of the Software; or (b) claims by your customers.
23. Governing Law; Venue.
This Agreement will be governed and construed in accordance with the laws of the State of Delaware without regard to its rules governing conflicts of law. Exclusive jurisdiction for any dispute relating to this Agreement, resides in the courts of the State of Delaware and you submit to the personal jurisdiction of, and venue in, such court(s).
Shyft may give notice to you by means of a general notice on the Site or Application, electronic mail to your email address on record in your account information, or by written communication sent by first class mail to your address on record in your account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or 12 hours after sending (if sent by email). You may give notice to Shyft by any of the following: (a) first class mail at the following address: 548 Market St. PMB 57421, CA 94104; or (b) email to the following email address: email@example.com.
This Agreement associated with the Site through which the Software is accessed and all applicable forms constitute the entire agreement between the parties relating to the Software and supersede all prior or contemporaneous oral or written communications with respect to its subject matter. No modification to this Agreement will be binding, unless made in writing and signed by a duly authorized representative of the parties. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach of this Agreement. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement will not be affected and each such term or provision of this Agreement shall continue to be valid, binding and enforceable to the fullest extent permitted by law. Nothing in this Agreement shall prohibit Shyft from furnishing the Service to others, including competitors of you.
Effective March 25, 2021