If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Sites, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modiﬁcation on the Sites. By continuing to access or use the Sites after we have posted a modiﬁcation on the Sites, you are indicating that you agree to be bound by the modiﬁed Agreement. If the modiﬁed Agreement is not acceptable to you, your only recourse is to cease using the Sites.
In addition to the Sites, Shift5 provides Customers and Authorized Users access to our products (the “Shift5 Product(s)”), subject to the terms and conditions of that certain Master License, Subscription and Services Agreement between each Customer and Shift5 (“Master Agreement”).
Shift5 is available only for adults aged 18 years or older.
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.
We reserve the right, in our sole and absolute discretion, to deny you access to the Sites or any portion thereof, without notice and without reason.
You may view all content on the Sites (the “Content”) for your own internal business use and not for any other use, including any commercial use, without the prior written consent of Shift5. We, and our licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access the Sites automatically terminates and you must immediately destroy any copies you have made of the Sites.
The trademarks, service marks, and logos of Shift5 (the “Shift5 Trademarks”) used and displayed on the Sites are registered and unregistered trademarks or service marks of Shift5. Other company, product, and service names located on the Sites may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Shift5 Trademarks, the “Trademarks”). Nothing on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission speciﬁc for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Shift5 Trademarks inures to our beneﬁt.
Elements of the Sites are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
By accessing and/or using the Sites, you hereby agree to comply with the following guidelines:
- You will not use the Sites for any unlawful purpose;
- You will not access or use the Sites to collect any market research for a competing businesses;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your afﬁliation with a person or entity;
- You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Sites;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Sites;
- You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Sites;
- You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Sites, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt ﬁle;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not interfere with or attempt to interrupt the proper operation of the Sites through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, ﬁles, or passwords related to the Sites through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Sites, or any portion thereof, without notice.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Sites and our services (“Feedback”). Although we encourage you to email us, we do not want you to, and you should not, email us any content that contains conﬁdential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
No Warranties; Limitation of Liability
THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER SHIFT5 NOR SHIFT5’S SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND SHIFT5 HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT SHIFT5 AND SHIFT5’S SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITES OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SITE OR ANY RELATED SERVICES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS PROVIDED IN THE MASTER AGREEMENT.
The Sites may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Sites administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading ﬁles from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You will indemnify, defend, and hold Shift5 and its shareholders, members, ofﬁcers, directors, employees, agents, and representatives (collectively, “Shift5 Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Shift5 Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; or (ii) your misuse of the Sites or the Content; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
Compliance with Applicable Laws; Export Controls
The software and technical data on this web site is subject to the laws, regulations, orders or other restrictions regarding import to, and export and re-export from, various countries, including export and re-export restrictions that may be imposed by applicable laws of the United States. By downloading or accessing software or technical data, you are agreeing not to import, export or re-export, either directly or indirectly (including transmission and shipment) except in accordance with all applicable laws, and you are accepting responsibility to determine what is necessary to assure such compliance.
In particular, but without limitation, you agree not to export, re-export or provide the software or technical data:
- to, or to a national or resident of, : Cuba, Iran, North Korea, Sudan, Syria, or to any other country embargoed or restricted by the U.S. (This list is subject to change, and you must comply with the proscribed lists as they exist in fact.)
- to anyone on the U.S. Commerce Department's Table of Denial Orders or the U.S. Department of Treasury's Specially Designated Nationals Lists, or
- to any person or entity who has been prohibited from participating in U.S. export transactions by any agency of the U.S. Government.
You also agree not to download, transfer, export or re-export Shift5 products, technology or software to yourself, your customers or any intermediate entity if our products will be used in the design, development, production, stockpiling or use of missiles, chemical or biological weapons or for nuclear end uses, without obtaining prior authorization from the U.S. Government.
Termination of the Agreement
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Sites, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Sites at any time without prior notice or liability.
In the event of a dispute arising under or relating to this Agreement or the Sites (each, a “Dispute”), either party may elect to ﬁnally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be ﬁnal and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be ﬁnal, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS ﬁling, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to conﬁrm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 12 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
Class Action Waiver
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and conﬁdential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.
Controlling Laws; Exclusive Forum
The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conﬂict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
If the Agreement is terminated in accordance with the termination provision in Section 9 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Ownership,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemniﬁcation,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the beneﬁt of our successors, assigns, licensees, and sublicensees.