End User Software License Agreement
This End User License Agreement (the "EULA") is entered into by and between SHIFTED, Inc., a corporation incorporated pursuant to the laws of Canada, having its principal place of business located at 103-435 McNeilly Road, Stoney Creek, Ontario, L8E 5E3, (hereinafter referred to as “SHIFTED”), and “you” an end-user of our Software (also referred to as “your(s)” or “yourself”). BY INSTALLING, USING OR ACCESSING THE SOFTWARE, YOU HEREBY ACKNOWLEDGE, AGREE AND ACCEPT THE TERMS AND CONDITIONS OF THIS EULA. If you do not agree to the terms and conditions of this EULA, please do not implement, access or otherwise stop using the Software.
“Affiliates” means mean any person, corporation, partnership or entity that, directly or indirectly, through one or more intermediaries, controls a party under this Agreement, that is, the ownership of 50% or more of the equity, shares, memberships or interest with controlling rights into such party.
“Confidential Information” means any information, including without limitation, any business, marketing, technical, scientific or other information disclosed by either party and relating to such party’s operations, products, designs, development, customers, business, finances, research, know-how or trade secrets, and which is either designated as confidential or which ought reasonably to be treated as confidential information of the party disclosing it. Confidential Information shall include, without limitation, any financial, operational, managerial, technical, marketing and commercial information relating to current or planned software products, of the disclosing party. Confidential Information includes not only written information but also information in the cloud, in digital form, in portable drives, orally, visually, electronically, or by other means and any copies thereof.
“Software” means the web-based management software developed by SHIFTED using the Software Development Kit (‘SDK’) and Application Programming Interface (’API’) known as ‘Tenon/TENON' including any and all third party and proprietary computer programs and components thereof, either provided within the Software itself, from remote servers, or that needs to be installed or implemented for the exploitation of the Software. The Software will also include any and all software updates, patches, fixes and upgrades, any and all accompanying manuals (if available), any and all other electronic or on-line materials and documentation, and any and all copies of the Software. The software has the functionalities, among others, to manage location awareness of mobile devices in a certain geographical space, along with communication and connectivity options to send messages and information to such near-located smartphones.
“Objectionable Content" means, but is not limited to: (a) sexually explicit materials; (b) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (c) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (d) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (e) gambling, including without limitation, any online casino, sports books, bingo or poker; (iv) remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Software or on any materials copied from the Software; and (v) engages in an activity that is harmful to the SHIFTED, its users, advertisers, subsidiaries, affiliates or anyone else.
SHIFTED retains or has any and all right, license, authorization, title and/or interest to SHIFTED’s marks, logos, images, commercial names, notices and legends, the Software and in general the Tenon SDK / API and any components therefrom (collectively, “SHIFTED’s IP”), including but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, videos, images, themes, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. You hereby acknowledge that no title or ownership in the Software is being transferred or assigned and that this EULA should not be construed as a sale of any rights in the Software. All rights not specifically granted under this EULA are hereby reserved by SHIFTED and/or its licensors. The Software is protected by applicable laws and international treaties throughout the world. Unless expressly authorized by mandatory legislation, the Software may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without the prior written consent from SHIFTED.
If you provide any feedback to us or our Affiliates, we will own all right, title, and interest thereof, even if you have designated such feedback as. We and our affiliates will be entitled to use the feedback without restriction. You hereby irrevocably assign to us and our Affiliates, all right, title, and interest in and to the feedback.
You retain and keep any and all right to the Content. You hereby acknowledge that no title or ownership in the Content is being permanently transferred or assigned (except for the license referred to in Section 3) and that this EULA should not be construed as a sale of any rights in the Content. All rights not specifically granted under this EULA are hereby reserved by you.
Subject to the terms and conditions of this EULA, SHIFTED hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, for all the world, limited right and license to use one copy/instance of the Software for your commercial use, subject to your compliance with this EULA. The term of your license under this EULA shall begin on the date that you implement, install, receive access to or otherwise begin using the Software, and shall end on the earlier date of either your: (i) uninstall, removal, access termination or access revoke of the Software; (ii) SHIFTED's termination of this EULA; or (iii) SHIFTED’s decision to make the Software no longer available for use, at its sole and final discretion. Your license will terminate immediately if you attempt to circumvent any technical protection measures used in connection with the Software.
You hereby grant SHIFTED a limited, non-exclusive, royalty-free, for all the world, right and license to download, use, reproduce, distribute, analyze and exploit any and all content, images, graphics, images, code, graphs, charts, texts, work tasks and any components therefrom (the “Content”) that you or your Affiliates, agents, employees or representatives introduce, upload or otherwise deliver to the Software, including but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, videos, images, themes, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof, inputted or otherwise delivered to the Software by you or any of your customers, clients or nearby persons. You represent and warrant to SHIFTED that you have all rights, authorizations or otherwise hold sufficient title for all content submitted to SHIFTED as set forth herein.
All licenses granted to you in this EULA are conditional on your continued compliance thereof, and will immediately terminate if you do not comply with any term or condition set forth herein. You represent and warrant that you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our Affiliates, clients, agents, officers, licensors, distributors and/or any authorized representative, any intellectual property infringement claim regarding the Software.
You shall not incorporate, embed, insert, combine or otherwise distribute or make available the Software or any other products, documentation, content or accompanying materials developed therefrom, with any code or other software licensed under any version of any open source license, in any manner that could cause or could be interpreted or asserted to cause the Software (or any modifications thereto) to become subject to the terms of such open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical. These restrictions, limitations, exclusions and conditions shall apply even if SHIFTED or any of its Affiliates become aware of or fails to act in a manner to address any violation or failure to comply therewith. Also, no act by SHIFTED or any of its Affiliates that is undertaken under this EULA as to any Software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other intellectual property rights which are owned or controlled by SHIFTED or any of its Affiliates (or for which SHIFTED or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any open source license.
General Terms and Conditions
You hereby agree not to: (i) commercially distribute or resell the Software; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Software, any passwords or usernames or any copies of the Software, without the express prior written consent of SHIFTED or; (iii) make a copy of the Software or any part thereof; (iv) make a copy of the Software publicly available on the Internet (or any other public or private communication network) for use or download by one or multiple users; (v) except as otherwise specifically provided by this EULA, use or install the Software (or permit others to do same); (vi) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Software, in whole or in part; (vii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Software, or falsify or delete any author attributions, legal notices or other labels of the origin or source of the Software; (viii) misrepresent the source of ownership of the Software; (ix) export or re-export (directly or indirectly) the Software into any country forbidden to receive the Software by any export laws or regulations, or where the Software is otherwise in violation of such country’s laws and/or regulations, which may be amended from time to time; (x) engage in any fraudulent, misleading, illegal or unethical marketing activities related to the Software or that otherwise may be detrimental to AP, (xi) make any representations, warranties or guarantees to prospective clients, customers, end-users or any other third party regarding the Software or a Beacon that are incompatible with or in addition to those set forth herein; and (xii) use the Software other than for your own legitimate internal business purposes.
To access the Software, you must create an account with a valid e-mail address. You are responsible for all activities that occur under your account.
Use of the Software
In order for certain features of the Software to operate properly, you may be required to have and maintain: (a) a permanent, adequate enterprise-level Internet connection; (b) a valid and active account with one or more cloud service providers; and/or (c) a valid and active credit or debit card or payment processing platform account. If you do not have such accounts, then the Software or certain features of the Software may not operate or may cease to function properly, either in whole or in part, and therefore SHIFTED will not be held liable for that.
This EULA does not apply to any open source software accompanying the Software and SHIFTED hereby disclaims any and all warranties, representations and liability to you or any third party related thereto.
Updates & Maintenance
From time to time, we may implement updates, upgrades, patches, bug fixes or other maintenance to the Software. We will use our commercially reasonable efforts to provide you with prior notice of any scheduled downtime or maintenance (except for emergencies) and you agree to comply with any requirements that we notify you about.
Disclaimer of Damages
To the fullest extent permissible under applicable law, the Software is provided to you “as is” and “as available”, with all faults, without warranty of any kind, without performance assurances or guarantees of any kind, and your use is at your sole risk. The entire risk of satisfactory quality and performance resides with you. SHIFTED, and its Affiliates, clients, agents, officers, licensors and/or distributors, do not make, and hereby disclaim, any and all express, implied or statutory warranties, either by statute, common law, custom, usage of trade, course of dealing or otherwise, however arising, including implied warranties of description, quality, fitness for a particular purpose, operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment. SHIFTED, and its Affiliates, clients, agents, officers, licensors and/or distributors, do not warrant against interference with your use of the Software or that it will meet your specific commercial requirements; that the operation of the Software will be uninterrupted or error-free, that the Software will interoperate or be compatible with any other software or device used by you or your Affiliates, that any errors in the Software will be corrected or that the Software will not be discontinued without previous notice.
No oral or written advice provided by SHIFTED, its Affiliates, clients, agents, officers, licensors, distributors and/or any authorized representative, shall create any implied warranty. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, therefore some or all of the above exclusions and limitations may apply only to the fullest extent permitted by law in the applicable jurisdiction.
Limitation of Liability
In no event shall SHIFTED, its Affiliates, clients, agents, officers, licensors, distributors and/or any authorized representative, be held liable for any special, indirect, incidental or consequential damages, including losses, costs or expenses of any kind resulting from possession, access, use or malfunction of the Software, including but not limited to, loss of revenue, profits, business, loss of use or lack of availability of computer resources, lost or corrupt data, re-procurement amount, anticipated savings, wasted expenditure, or other commercial or economic loss; or for any indirect, incidental, special, punitive, aggravated, exemplary, or consequential damages whatsoever arising out of or related to this EULA or the Software, whether arising in tort (including negligence), contract, strict liability or other legal or equitable theory and whether or not SHIFTED, its affiliates, clients, licensors and/or distributors have been advised of the possibility of such damages. For purposes of this Section, SHIFTED’s affiliates, licensors and distributors are third party beneficiaries to the limitations of liability specified herein and they may enforce this EULA against you.
Legislation of some states/countries does not allow certain limitations of liability, and henceforth this limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. This limitation of liability shall not be applicable solely to the extent that any specific provision of this limitation of liability is prohibited by any federal, state, or municipal law, which cannot be pre-empted. This EULA provides you specific legal rights, and you may have other rights that may vary from jurisdiction to jurisdiction.
In no event, shall SHIFTED’s, or its Affiliates’, clients’, licensors’ and/or distributors’ liability for all damages (except as required by applicable law) exceed; (i) the actual price paid by you for the license and/or use of the Software; or (ii) the amount of cad$1000.00 (One Thousand Candian Dollars); whichever results less, and henceforth any award for direct, provable damages shall not to exceed such total amount.
Indemnification By You
You shall indemnify, hold harmless, and defend SHIFTED, SHIFTED, its Affiliates, clients, agents, officers, licensors, distributors and/or any authorized representatives, and the officers, directors and employees of each (jointly, the “SHIFTED Indemnitees”) from and against any and all third party liabilities, claims, causes of action, suits, losses, damages, fines, judgments, settlements and expenses (including any and all reasonable outside attorneys’ fees and court costs) which may be suffered, made or incurred by any of such SHIFTED Indemnitees arising out of or relating to: (i) any breach of any warranties, representations and/or EULAs made by you hereunder (to the extent not arising substantially from any breach hereof by SHIFTED); (ii) any third party claim arising out of or in relation to any Software or use thereof in combination with your business platform, including without limitation, any claim that any Software or use thereof violates, infringes, or misappropriates any proprietary or intellectual property right of any third party, including without limitation, any privacy right of any person, or violates any applicable law; and (iii) any representation, warranty or guarantee made by you with respect to any of the Software that is inconsistent with or in addition to those made in this EULA.
Indemnification By SHIFTED
SHIFTED will indemnify you against all claims and proceedings arising from infringement (or alleged infringement) of any intellectual property rights by reason of your permitted use of the Software as supplied by SHIFTED. As a material condition of this indemnity, you will: (i) promptly notify SHIFTED in writing of any allegation of infringement; (ii) make no admission relating to the infringement; and (iii) allow SHIFTED full control over all negotiations and proceedings and give SHIFTED all reasonable assistance. The aforementioned remedy shall not apply to breaches caused by: (i) your use of the Software in conjunction with other software not supplied by SHIFTED; or (ii) designs or specifications made by you.
The indemnifications obligations contained in this Section shall not apply to the extent that any claim against SHIFTED Indemnitees arises as a result of or in relation to: (i) any Content; (ii) use of the Software other than in accordance with this EULA and/or any applicable laws; (iii) use of the Software in combination with any software, service, or application not provided by SHIFTED or approved by SHIFTED in writing; (iv) any alterations or modifications of the Software not provided by SHIFTED or not approved by SHIFTED in writing.
You hereby acknowledge and agree that the Software has not been completely tested in all situations or devices, and that the Software may contain operational malfunctions, errors, viruses, bugs, worms, trojan horses, bots and other harmful and destructive components or defects. Henceforth, during the Term of this EULA, SHIFTED guarantees to you that the Software shall perform in all material respects according to SHIFTED’s specifications. Your sole remedy for SHIFTED’s breach thereof shall be that SHIFTED shall correct the Software according to the terms of this Limited Warranty of Functionality.
The Warranty of Functionality shall not apply in the event that the Software or any part thereof is: (i) modified in any manner by any party other than SHIFTED or as authorized thereby; (ii) used in conjunction with yours or third parties’ software and/or products resulting in a defect or non-conformance other than as specified by SHIFTED; or (iii) used on an operating environment not approved by SHIFTED.
Under no circumstances shall SHIFTED incur any responsibility or liability for breaches of warranty caused by your onsite power, telecommunications, internet-connectivity or performance of cloud services provider or other environmental causes.
In the event of any breach or alleged breach by SHIFTED, judged as so by a competent jurisdiction, of the representation and warranties set forth in this Section, your remedy under this Warranty of Functionality shall be (without excluding any other remedies available to you under applicable law) that SHIFTED either: (i) procures, at SHIFTED's expense, the right to use the breaching portion of the Software; or (ii) replace the breaching portion or any part thereof that is in breach and replace it with a component of comparable functionality that does not cause any breach.
Neither party shall disclose any Confidential Information to any third party except to its employees, attorneys, tax or accounting professionals who have a legitimate need to know and who have agreed to be bound by the provisions of a confidentiality agreement at least as stringent as the ones herein. Each party shall further protect the Confidential Information to the same extent as it protects its own information of a similar type.
Confidential Information shall not include, information that: (i) is in the public domain at the time of disclosure; (ii) becomes publicly available through no fault of the recipient party and without breach of this EULA, (iii) is already in the lawful possession of a party without restriction prior to disclosure; (iv) becomes rightfully known to a party without restriction from a source other than the disclosing party; or that (v) is required to be disclosed by virtue of an order of a competent court or a legal requirement; shall not be deemed Confidential Information.
You hereby agree that SHIFTED may publicly announce the business relationship with you through a press release or other communication means, subject to you prior approval, not to be unreasonably withheld.
Other Terms and Conditions
This Agreement is effective as of the date first shown below and will continue in force until SHIFTED terminates this EULA for any cause. Any provisions of this EULA that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration therefrom, shall be deemed to survive for as long as necessary to fulfill such purposes. If SHIFTED determines that a law or regulatory action prohibits, substantially impairs or makes impractical the provision of any Software, SHIFTED may, at its sole discretion, upon simple notice to you and without any liability, terminate provision of part or all of the Software, in order to conform to such law or action.
SHIFTED shall be responsible for addressing any and all customer claims by you relating to the Software or use thereof, including but not limited to: (i) any product liability claim; (ii) any claim that the Software fails to conform to any applicable law; and (iii) any claim arising under consumer protection or similar legislation. You may send customer support inquires to 103-435 McNeilly Road, Stoney Creek, Ontario, L8E 5E3, Canada
Security & Backup
You are responsible for properly configuring and using the Software and taking your own steps to maintain appropriate security, protection and backup of your Content.
You hereby agree not to undertake, and to not tolerate, motivate, or facilitate the use or access of the Software to: (i) encourage a conduct which would potentially give birth to a claim of defamation and/or libel against SHIFTED or that otherwise breaches the laws of any jurisdiction; (ii) plagiarize or infringe the intellectual property rights of any third party; and/or (iii) upload, post or otherwise disseminate any Objectionable Content.
SHIFTED hereby reserves the right, at its sole and final discretion, to review any and all content delivered into the Software by you or any other user, and use its moderators and/or any monitoring technology to flag and remove any content deemed inappropriate, along with the ban of any offensive users or any other users who violate this EULA or otherwise post, disseminate or allow Objectionable Content to be delivered to or through the Software. SHIFTED will promptly act upon any Objectionable Content or any objectionable activity report, either by removing the content and/or ejecting the user who provided the Objectionable Content.
User Generated Content
You further represent and warrant that you will not, through the use of the Software, except as expressly permitted by the applicable owner, or to the extent required by any applicable law: (i) modify any customer or client content; (ii) disclose any customer or client content; or (iii) use any customer or client content for any purpose other than for your legitimate business purposes.
You acknowledge and agree that you are responsible for your client’s and customer’s Content and use of the Software’s functionalities. You will ensure that all of your clients and customers comply with your obligations under this EULA. If you become aware of any violation of your obligations under this EULA Agreement by third party, you will immediately terminate such third party’s access to the Software.
You are responsible for providing customer service (if any) to your clients and customers. We do not provide any support or services to our end-user’s clients and customers unless with a separate agreement.
You hereby acknowledge that you are at least eighteen (18) years of age, or older, as of the date of first access to the Software.
This EULA shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors. This EULA supersedes all prior agreements arrangements and understandings between the parties hereto and constitutes the entire agreement between the parties relating to the subject matter hereof.
In the event that any provision hereof or part thereof is found invalid or unenforceable, the remainder of this EULA shall remain valid and in force. Without limiting the foregoing, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect.
Third Party Services
SHIFTED makes no representation, warranty, condition, or guarantee, and accepts no obligation in relation to any third party services or any products or services not proprietary to, or otherwise made available by SHIFTED through the Software, including without limitation, any open source software, whether used on a standalone basis or in conjunction with the Beacons or any other SHIFTED product.
SHIFTED and you are independent contractors, and neither party, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other.
SHIFTED may collect and use personal information about your usage of the Software. SHIFTED may use this information for: (i) its legitimate business purposes, provided that such information will not personally identify you or any end-user; (ii) keep a database of users of the Software and slice and dice data obtained therefrom; and (iii) create and display browsing and consumption preferences profiles of you and other users, charts, aggregated statistics and databases and other data.
SHIFTED’s failure to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision.
You hereby acknowledge and agree that if the terms of this EULA are not specifically enforced, SHIFTED will be irreparably damaged, and therefore you agree that SHIFTED shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
Representations & Warranties
You hereby represent and warrant that: (i) you agree and oblige to comply with all applicable laws, rules and regulations when using the Software; and (ii) you will not use the Software to infringe any intellectual property rights of any third party.
The Reseller agrees at all times to conduct herself or himself with due regard for the best interests of the SHIFTED and not do or omit to do anything, which act or omission might in any way bring the SHIFTED into disrepute or damage the SHIFTED’s reputation. For greater certainty, Reseller agrees to adhere in the strictest fashion to all the terms of this Agreement and always to be of good character.
This EULA represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended from time to time only by SHIFTED’s sole decision, through a notice to you or to any other user. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall remain in force. You may not transfer any of your rights or obligations under this EULA to any other person.
This EULA may not be modified unless agreed to in writing by both parties.
Certain export laws and regulations of Canada and the United States and any other applicable export laws and regulations apply to the Software. The Reseller acknowledges and agrees that such export control laws govern Reseller’s use of the Software (including technical data) and any services deliverables provided under this Agreement.
In the event of any dispute arising out of or in connection with the present Agreement, the parties agree in the first instance to discuss and consider referring the dispute to non-binding mediation under the International Chamber of Commerce Mediation Rules.
The parties hereby consent and submit to the exclusive jurisdiction of the competent courts located at the City of Toronto, Province of Ontario, Canada, which shall have exclusive jurisdiction to hear all disputes arising in connection with this Agreement and no other courts shall have any jurisdiction whatsoever in respect of such disputes. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. BY ENTERING INTO THIS EULA, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST SHIFTED AND ITS PARENT, AFFILIATE OR SUBSIDIARY COMPANIES.
This Agreement shall be construed and enforced in accordance with the laws of Ontario, Canada, without giving effect to the principles thereof relating to conflict of laws. The U.N. Convention for the International Sale of Goods shall not apply to this Agreement.
Date of last effective update is October 3rd, 2016.