ShiftCrew

Terms of Service — Version 1.0

Terms of Service

Notice: The within instrument constitutes a binding agreement between K-NET LABS, operating under the trading style “ShiftCrew” (hereinafter the “Provider”), and any natural or legal person who accesses, registers for, or otherwise makes use of the Platform (hereinafter the “User”). The User is hereby placed on notice that access to and use of the Platform is conditional upon the User’s unqualified acceptance of the terms and conditions hereinafter set forth, and the User is advised, where deemed appropriate, to obtain independent legal advice prior to consummating such acceptance.

Preamble and Recitals

WHEREAS the Provider operates a software-as-a-service platform accessible by means of the world wide web at the universal resource locator shiftcrew.app and at such other locators as the Provider may from time to time designate (collectively, the “Platform”), the purpose of which is to facilitate the coordination, administration, and operationalization of the scheduling of paid staff, volunteers, contractors, and other persons rendering services in connection with events, committees, festivals, tournaments, and analogous undertakings;

AND WHEREAS the User wishes to access the Platform, whether in the capacity of an organizational administrator establishing and operating a tenancy within the Platform, or in the capacity of a natural person rendering services to such an organization and accessing the Platform by means of a time-limited authentication token (each, an “End-User”);

AND WHEREAS the parties wish to set forth in writing the respective rights, obligations, representations, warranties, limitations, exclusions, and remedies as shall govern the relationship subsisting between them throughout the duration hereof;

NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

1. Definitions and Construction

For the purposes of these Terms of Service (hereinafter the “Terms”), and except where the context otherwise requires:

  • “Affiliate” means, in respect of any person, any other person directly or indirectly controlling, controlled by, or under common control with, the first-mentioned person;
  • “Customer Content” means all data, information, materials, configurations, and content of any kind whatsoever uploaded, transmitted, or otherwise made available to the Platform by the User or any End-User acting under the authority or apparent authority of the User;
  • “Documentation” means the user-facing documentation, knowledge-base articles, and product help materials made available by the Provider from time to time;
  • “Effective Date” means, in respect of any User, the date upon which such User first indicates assent to these Terms by means of registration, acceptance of a click-wrap dialog, or other manifest act of acceptance;
  • “Order” means a written or electronic order form, online checkout transaction, or statement of work pursuant to which the User subscribes to paid functionality offered by way of the Platform;
  • “Subscription Term” means the period commencing on the activation of a paid plan and terminating in accordance with the applicable Order or these Terms.

2. Acceptance and Binding Effect

By accessing or making any use of the Platform, the User irrevocably and unconditionally agrees to be bound by these Terms, by the Privacy Policy referenced at Section 18 hereof, and by such supplementary terms and conditions as may be incorporated by reference herein. The User represents and warrants that the User is of full age of majority in the jurisdiction of the User’s habitual residence and possesses the legal capacity to enter into a binding contract; and, where the User purports to enter into these Terms on behalf of a corporate or other juridical entity, the User further represents and warrants that the User is duly authorized to bind such entity to the terms hereof, in which event the expression “User” shall refer mutatis mutandis to such entity.

3. Grant of Licence and Reservation of Rights

Subject to the User’s continuing and unqualified compliance with these Terms, including without limitation the timely payment in full of all applicable fees, the Provider hereby grants to the User a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence, during the subsistence of the Subscription Term, to access and make use of the Platform solely for the User’s internal business or operational purposes, and strictly in accordance with the Documentation and these Terms.

All right, title, and interest in and to the Platform, including without limitation all software, source code, object code, designs, methodologies, algorithms, user interfaces, trade-marks, trade-names, business and trade secrets, know-how, and other intellectual property rights subsisting therein, and all derivative works, enhancements, modifications, improvements, and translations thereof, shall remain at all times the exclusive property of the Provider and its licensors. The User acquires no right, title, or interest in the foregoing save and except for the limited licence expressly granted hereunder. All rights not expressly granted hereunder are expressly reserved by the Provider.

4. Restrictions on Use

The User shall not, and shall not permit, authorize, or encourage any other person to:

  1. copy, modify, adapt, translate, port, decompile, disassemble, reverse-engineer, or otherwise attempt to derive the source code, underlying structure, ideas, or algorithms of the Platform, save and except to the extent that the foregoing prohibition is overridden by mandatory provisions of applicable law;
  2. rent, lease, lend, sell, sublicense, time-share, or otherwise commercially exploit the Platform, or permit access thereto by any person other than authorized End-Users acting within the scope of the licence hereunder;
  3. use the Platform to transmit unsolicited commercial electronic communications in contravention of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23, or analogous legislation in any other jurisdiction;
  4. use the Platform to store, process, or transmit material which is unlawful, defamatory, harassing, threatening, obscene, infringing of any third-party intellectual property right, or otherwise objectionable in the reasonable determination of the Provider;
  5. interfere with or disrupt the integrity, security, or performance of the Platform or the underlying infrastructure thereof, including without limitation by means of denial of service, intentional injection of malicious code, or automated scraping techniques not expressly sanctioned by the Provider in writing;
  6. circumvent any rate limit, access control, or capacity cap associated with the User’s subscription plan;
  7. use the Platform in any manner inconsistent with the Documentation or these Terms, or for any purpose other than that for which it was designed and made available.

5. Customer Content and Data Ownership

As between the parties, the User retains all right, title, and interest in and to Customer Content. The User hereby grants to the Provider a non-exclusive, royalty-free, worldwide licence to host, copy, transmit, display, modify, and otherwise Process Customer Content solely to the extent necessary for the Provider to provide the Platform and the ancillary services thereof to the User. The User represents and warrants that the User has obtained all consents, authorizations, and licences necessary in respect of all Customer Content, including without limitation the consents of all natural persons whose personal information is comprised therein, and shall hold the Provider harmless from any claim, demand, or proceeding arising from any failure to do so.

The Processing of personal information comprised within Customer Content is governed by the Privacy Policy referenced at Section 18 hereof, which forms an integral part of these Terms.

6. Fees, Billing, and Taxes

The User shall pay to the Provider all fees specified in the applicable Order, in the currency therein stipulated, and in accordance with the payment terms therein set forth. Subscription fees shall be invoiced or charged in advance of the applicable Subscription Term and, save and except as otherwise expressly provided herein, shall be non-refundable and non-creditable. The Provider reserves the right, upon not less than thirty (30) days’ prior written notice, to modify the fees applicable to any renewal Subscription Term, which modified fees shall take effect at the commencement of the renewal Subscription Term then next following.

All fees are exclusive of, and the User shall be solely responsible for the payment of, all applicable sales, use, value-added, harmonized sales, goods and services, and analogous taxes, levies, duties, and assessments, excluding only taxes assessed upon the Provider’s net income. Past due amounts shall accrue interest at the lesser of one and one-half per centum (1.5%) per month and the maximum rate permitted at law, calculated from the date upon which payment became due until the date upon which payment is received in full.

7. Term, Suspension, and Termination

These Terms shall remain in full force and effect from the Effective Date until terminated as hereinafter set forth. Either party may terminate these Terms for convenience upon not less than thirty (30) days’ prior written notice to the other, provided that no such termination by the User shall entitle the User to a refund of any prepaid fees save and except as may be required at law. Either party may terminate these Terms forthwith upon written notice in the event that the other party (a) commits a material breach of these Terms which is not cured within fifteen (15) days of receipt of written notice thereof, or (b) becomes insolvent, makes an assignment for the benefit of its creditors, becomes subject to any proceeding under bankruptcy or insolvency legislation, or ceases to carry on its business in the ordinary course.

Without prejudice to its rights of termination, the Provider may, in its sole discretion and without liability, suspend the User’s access to the Platform in whole or in part in the event that (i) the Provider reasonably believes that the User’s use of the Platform presents a security risk to the Platform or to other users thereof; (ii) the User is in breach of Sections 4, 5, or 6 hereof; or (iii) the Provider is required to do so by operation of law.

Upon termination of these Terms, all rights and licences granted to the User hereunder shall forthwith cease, and the User shall discontinue all use of the Platform. The Provider shall, upon written request received within thirty (30) days of the effective date of termination, make Customer Content available to the User for export in a commonly used technological format. Following the expiry of the said thirty-day period, the Provider may, but shall not be obliged to, destroy or render inaccessible all Customer Content, subject to the retention periods set forth in the Privacy Policy.

8. Disclaimer of Warranties

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE PROVIDER HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED AT LAW, ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND OBLIGATIONS WHATSOEVER, WHETHER EXPRESS OR IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, NON-INFRINGEMENT, ACCURACY, UNINTERRUPTED AVAILABILITY, OR ABSENCE OF ERRORS. THE PROVIDER DOES NOT WARRANT, REPRESENT, OR UNDERTAKE THAT THE ALGORITHMIC OUTPUTS PRODUCED BY THE PLATFORM’S SCHEDULING ENGINE WILL BE OPTIMAL, COMPLETE, OR FREE FROM ERROR, AND THE USER ACKNOWLEDGES THAT ALL SUCH OUTPUTS CONSTITUTE NON-BINDING RECOMMENDATIONS SUBJECT TO THE USER’S DISCRETIONARY REVIEW PRIOR TO IMPLEMENTATION.

9. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED AT LAW, IN NO EVENT SHALL THE PROVIDER, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE TO THE USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AGGRAVATED, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE THE PLATFORM, WHETHER FOUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PROVIDER WAS ADVISED OR OUGHT TO HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT PREJUDICE TO THE FOREGOING, THE AGGREGATE CUMULATIVE LIABILITY OF THE PROVIDER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE NUMBER OR NATURE OF CLAIMS, SHALL NOT EXCEED THE GREATER OF (i) THE AGGREGATE FEES ACTUALLY PAID BY THE USER TO THE PROVIDER IN RESPECT OF THE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, AND (ii) ONE HUNDRED CANADIAN DOLLARS (CAD $100.00). THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS REFLECT AN AGREED ALLOCATION OF RISK AND CONSTITUTE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THEM, WITHOUT WHICH THE PROVIDER WOULD NOT HAVE ENTERED INTO THESE TERMS.

10. Indemnification

The User shall indemnify, defend, and hold harmless the Provider, its Affiliates, and their respective directors, officers, employees, agents, and contractors from and against any and all claims, demands, actions, proceedings, liabilities, losses, damages, costs, and expenses (including reasonable legal fees on a solicitor-and-own-client basis) suffered or incurred by any of them arising out of or in connection with (a) any Customer Content; (b) any breach by the User of these Terms; (c) any unauthorized use of the Platform by any End-User acting under the User’s credentials or apparent authority; or (d) any allegation that Customer Content infringes the intellectual property rights or privacy rights of any third party.

11. Algorithmic Scheduling Outputs

The User expressly acknowledges and agrees that the Platform’s constraint-satisfaction scheduling engine produces non-binding recommendations only, and that the User retains at all times sole and unfettered discretion in respect of the publication and operational implementation of any schedule generated thereby. The Provider shall bear no liability whatsoever for any operational, contractual, reputational, or other consequence arising from the implementation of any schedule generated by means of the Platform.

12. Privacy and Data Protection

The Provider’s collection, use, retention, disclosure, and other Processing of personal information in connection with the Platform is governed by the Privacy Policy published at shiftcrew.app/privacy, which document is incorporated herein by reference and forms an integral part of these Terms. In the event of any inconsistency between the Privacy Policy and these Terms in respect of the Processing of personal information, the Privacy Policy shall prevail.

13. Confidentiality

Each party (the “Receiving Party”) acknowledges that it may, in the course of its dealings with the other party (the “Disclosing Party”), receive information of a confidential or proprietary nature (“Confidential Information”). The Receiving Party shall hold all Confidential Information in strict confidence, shall not disclose the same to any third party save and except with the prior written consent of the Disclosing Party or as expressly permitted hereunder, and shall use the same solely for the purpose of performing its obligations or exercising its rights hereunder. The obligations set forth in this Section 13 shall survive any termination of these Terms for a period of five (5) years thereafter, save and except in respect of Confidential Information constituting a trade secret, as to which the said obligations shall subsist for so long as such information remains a trade secret.

14. Modifications to the Terms

The Provider reserves the right, in its sole discretion, to modify, supplement, or restate these Terms from time to time. Material modifications shall be communicated to the User by means of electronic notice transmitted to the email address associated with the User’s account, by means of an in-application notice, or by means of the publication of a revised Terms document accompanied by an updated version number and revision date. The continued use of the Platform by the User following the effective date of any such modification shall, to the fullest extent permitted at law, constitute the User’s acceptance thereof; in the event the User does not accept any such modification, the User’s sole and exclusive remedy shall be to terminate these Terms and discontinue use of the Platform in accordance with Section 7 hereof.

15. Governing Law and Forum

These Terms, and all matters arising out of or in connection herewith, shall be governed by, construed, and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict-of-laws principles. The parties attorn irrevocably to the exclusive jurisdiction of the courts of the Province of Ontario sitting in the City of Toronto in respect of all disputes, claims, or proceedings arising out of or in connection with these Terms, save and except that the Provider may seek interlocutory or injunctive relief from any court of competent jurisdiction in any other place. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

16. General Provisions

  1. Entire Agreement. These Terms, together with the Privacy Policy and any applicable Order, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous understandings, representations, and agreements, whether oral or written;
  2. No Waiver. No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right, power, or privilege;
  3. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed and the remaining provisions shall continue in full force and effect, the parties undertaking to negotiate in good faith a substitute provision approximating, to the greatest extent permitted at law, the commercial intent of the severed provision;
  4. Assignment. The User shall not assign these Terms or any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Provider; the Provider may assign these Terms without restriction, including to an Affiliate or in connection with a merger, acquisition, reorganization, or sale of substantially all of its assets;
  5. Force Majeure. Neither party shall be liable for any failure or delay in the performance of any obligation hereunder (excepting only obligations of payment) caused by circumstances beyond such party’s reasonable control, including without limitation acts of God, war, terrorism, civil disturbance, governmental order, pandemic, labour disruption, or failure of a third-party service provider;
  6. Independent Contractors. The relationship of the parties is that of independent contractors, and nothing herein shall be construed as creating a partnership, joint venture, agency, or employment relationship between them;
  7. Notices. Notices to the Provider hereunder shall be transmitted to [email protected]; notices to the User shall be transmitted to the email address associated with the User’s account;
  8. Survival. The provisions of Sections 3 (Reservation of Rights), 5 (Customer Content), 6 (Fees), 7 (Termination consequences), 8 (Disclaimer), 9 (Liability), 10 (Indemnification), 13 (Confidentiality), 15 (Governing Law), and 16 (General Provisions) shall survive any termination or expiration of these Terms.

17. Language

The parties hereto confirm that it is their wish that these Terms, as well as all other documents relating hereto, including notices, be drawn up in the English language. Les parties aux présentes confirment leur volonté que les présentes, de même que tous les documents s’y rapportant, y compris tout avis, soient rédigés en langue anglaise. Where the User is resident in the Province of Quebec, the User may, on written request directed to the Provider, obtain a French-language version of these Terms.

18. Incorporated Documents

The following documents, as may be amended from time to time in accordance with their respective amendment provisions, are hereby incorporated into and form an integral part of these Terms:

  1. the Privacy Policy, published at shiftcrew.app/privacy;
  2. any Order entered into by the User in respect of paid functionality of the Platform.

19. Contact

All correspondence respecting these Terms should be addressed to:

K-NET LABS (operating as ShiftCrew)
Province of Ontario, Canada
[email protected]