1.1 Myshift, Inc. (“Myshift”) provides services to businesses (the “Services”) that allows businesses to use an application-based platform (the “Platform”) to connect with independent contractors (“Users”) to provide contract labor to the businesses. This Business Services and Platform Agreement (“Agreement”) constitutes a legal agreement between you and Myshift. Please read this Agreement in its entirety if you wish to continue to use the Services.
1.2 This Agreement is a contract that sets out the legally binding terms of the relationship between you and Myshift. By acknowledging this Agreement and/or by using the Myshift online business dashboard (the “Dashboard”) in connection with the Services, you represent that (1) you have read, understand, and agree to be bound by this Agreement, and (2) you have the authority to enter into this Agreement personally or on behalf of the company you have named as the Business, and to bind that company to these terms.
2.1 In this Agreement, where the context so admits, the words and expressions used in this Agreement shall have the following meaning:
"Access Method" - means any user identification, passwords and other security credentials assigned to you and required to access and use the Platform;
"Account" - means any account which we may set up for you and granted to you pursuant to this agreement;
"Applicable Laws" - means all applicable local or foreign laws, rules, acts, regulations, subsidiary legislation notices, notifications, circulars, license conditions, directions, requests, requirements, guidelines, directives, codes, information papers, practice notes, demands, guidance and/or decisions of any national, state or local government, any agency, exchange, regulatory or self-regulatory body, law enforcement body, court, central bank or tax revenue authority or any other authority whether having the force of law or not (including any intergovernmental agreement between the governments or regulatory authorities of two or more jurisdictions or otherwise), as may be amended from time to time;
“Shift” – means a work opportunity posted on the Platform;
“User(s)” – means the independent contractor(s) on the Platform;
"Platform and/or Dashboard" -means the online platform/dashboard (accessible through our website at www.myshift.us operated by us);
"Privacy Policy" - means the policy on the privacy and protection of Personal Data adopted by us as made available at www.myshift.us/privacy-policy, as may be supplemented, amended or varied from time to time upon our notification to you;
"Service" - means any service provided by us through the Platform;
"System" - means the hardware, software and telecommunication links or any part thereof used from time to time for the purpose of providing, supporting, accessing and/or otherwise referable to the Platform;
2.2 The words "we", "us", "our" or any of their derivatives refer to Myshift and its successors and any novatee, assignee, transferee or purchaser of Myshift's rights and/or obligations hereunder and any reference to Myshift includes a reference to such successor, novatee, assignee, transferee or purchaser.
2.3 The words "you", "your", "yours" or any of their derivatives refer to the businesses using or accessing our Platform.
3.1 Service Fee. Myshift charges fees and collects payment for each Shift performed. Myshift is responsible for and will initiate payment of any amounts owed to the Users on a daily basis. You will be billed an amount equal to the payment made to the User for the Shift plus the Service Fee once the Shift has been completed by the User. The “Service Fee” for each Shift is equal to a percent of the total payment amount to the User for each respective Shift. You will be billed weekly for Services performed in the respective week if you have provided a credit or debit card as your method of payment. You will be billed weekly for Services performed in the respective week with net 15 terms of payment, if You have chosen invoicing as your method of payment. You agree to provide Myshift with complete and accurate billing and contact information, including but not limited to, the Business’s legal name, e- mail address, and the name of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Myshift reserves the right to terminate Your access to the Services, and any outstanding Work Opportunities, in addition to any other remedies at law.
3.2 Taxes. Myshift’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If Myshift has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you.
3.3 Late Cancellation Fee. In the event that you cancel a Shift that has already been awarded to a specific User less than 24 hours before the start time of the Shift, you will be required to pay the full cost of the Shift. The cost includes both the payment for the Shift and the Service Fee to Myshift. Cancellation or re-entry of any Shift that has not been awarded to a specific User, regardless of timing, will not result in any cancellation fees.
3.4 Adjustment to User Hours. There may be occurrences when an User works fewer hours than the hours you posted for that specific Shift. When this occurs, it is your responsibility to report the reduction in hours for that Shift through the Platform by 11:00am central time the day following the Shift's end-time. Failure to do so will result in the User being paid for the full amount of hours for that Shift and you will be responsible for paying the full amount charged by Myshift.
3.5 User Bonus Pay. You agree to oversee User working hours to prevent individual Users from working more than 40 hours a week in the performance of Your Shift(s). In the event an User works in excess of 40 hours while performing Shift(s) for You in a given week, you agree to being charged 1.5 times the Shift pay rate plus the applicable Service Fee for any hours exceeding 40.
4.1 The Parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between them as a result of this Agreement or any use of the Services.
4.2 Worker classification. Myshift Users are independent contractors. Myshift does not, in any way, supervise, direct, or control a Users’ work or Services performed in any manner. Myshift does not set a User’s work hours and location of work, nor is Myshift involved in determining the type or manner compensation to be paid for any work performed by a User. Myshift will not provide a User with training or any equipment, labor or materials needed for a particular Shift.
4.3 Marketplace Platform. Myshift is an online platform for businesses to create and advertise Shift to prospective Users and does not perform any operational services. Users do not perform services for a predetermined wage paid on a periodic basis. User payment is a flat amount paid upon completion of the job. Business users post Shifts for bids subject to competitive offers from qualified members of the public who register on the Myshift platform as a prospective User. Users, not business users, make offers. User offers in response to an invitation for bids do not constitute acceptance by a business user. Responses to Shifts are subject to negotiation of the terms and specifications of the Shift, counter-offers, bid withdrawal by prospective Users, and rejection or cancellation prior to an acceptance at the discretion of both Users and business users. When an User’s offer is accepted by a business user, a contract is formed. As such, every payment amount is variable and based on several factors, including but not limited to the cost competitiveness of the offer or bid, the performance rating of an User, the User’s stated estimate of the time to complete the Shift, the User’s stated availability to perform, as well as external factors, including regulatory developments, that may shape the supply of prospective Users. As a condition of using the Myshift platform, you certify that your Shifts and payments comply with these terms.
5.1 Information required. Upon request, you shall provide a valid email address, a password, and answers to security questions (or any other information we may request in order to establish the appropriate Access Methods), which are necessary for you to gain access to restricted areas of the Platform.
5.2 Security measures. You agree that:
(a) we may determine the appropriate Access Methods, which may involve a combination of one or more access controls;
(b) you shall be solely responsible for ensuring secure internal and, to the fullest extent possible, external controls on access to and use of the Platform, including but not limited to the security and confidentiality of your Access Methods (such as your password and answers to security questions).
(c) you shall be solely responsible for, and be bound by, all acts or omissions of any person using the Platform through your Access Methods. We are under no duty of inquiry regarding the identity, authority or capacity of any such person and are entitled to rely on any Instructions submitted by any person accessing or using the Platform through your Access Methods or through Alternative Methods, even if made fraudulently and even if they conflict with the terms of any other Instructions given by you.
5.3 Compliance with Applicable Laws. You shall access and use the Platform in compliance with all Applicable Laws. Without limiting the generality of the foregoing, your use of the Platform shall be subject to such additional restrictions, terms and conditions of use, disclosures or disclaimers that may be communicated to you (whether by written or electronic means) in connection with such use.
5.4 Keeping the integrity of the Platform. You shall not introduce into the Platform any content, materials or code which contains any virus, Trojan horse, work, time bomb, cancelbot or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personal Data. You undertake not to back into, disrupt, disable, burden or otherwise interfere with the accessibility or impair the proper function of the Platform, the services which we may provide to you pursuant to any agreement or the Systems, which shall include, without limitation, spoof attacks, backing, sniffing, tampering, denial-of-service attacks, tampering, reverse engineering or reprogramming.
5.5 Your duties. Any data, information or message transmitted to you through our System, the Platform or otherwise is confidential and intended for the sole use of the intended recipient. If you are not the intended recipient, you should immediately notify us and delete or destroy such data, information or message, including all copies thereof.
5.6 Confidentiality of other information. You must keep confidential, all information about the Platform, our System and any information, data, materials or documents provided to you.
6.1 Monitoring of access and use. We may monitor all your access to and use of the Platform so as to detect any improper activity relating thereto. You shall comply in a timely manner with our requests for information, documents and other material requested by us.
6.2 Right of termination. We reserve the right to restrict, temporarily or permanently the operation of the Platform at any time and with immediate effect, without incurring liability of any kind to you, if any of the following events occur:
(a) you have breached the terms of this Agreement;
(b) you are using the Platform in a manner that may cause us to breach Applicable Laws, have legal liability or disrupt others’ use of the Platform;
(c) you are using the Platform for any illegal activities or where we have reasonable suspicion that you may be doing so;
(d) we become aware or suspect that your Access Methods are stolen, lost, damaged or compromised;
(e) we become aware or suspect that the person logged into using your Access Methods is not you,
(f) we are required to do so by Applicable Laws or pursuant to a request by any government or regulatory body;
(g) scheduled downtime or recurring downtime;
(h) a Force Majeure Event;
(i) you publish, post, transfer, distribute or upload any content or information to the Platform which is false, misleading or inaccurate, contains rude and inappropriate language or which creates the impression that any content is sponsored or endorsed by us;
(j) you modify, adapt or reverse engineer the Platform or any part thereof; or
(k) you transmit any viruses, worms, defects, Trojan horses or any other items of a destructive nature, or that may otherwise compromise the security of the Platform.
7.1 The names, images and logos or any other trademarks (“Marks”) identifying us or third parties and their products and services are subject to copyright, design rights and trademarks of us and/or third parties, and all rights to the Marks are expressly reserved by us or the relevant third parties. Nothing contained in this Platform Agreement shall be construed as conferring by implication, estoppel or otherwise any license or right to use any trademark, patent, design right or copyright of us or any other third party, without the prior written consent of us or such third party. You shall not use our Marks or the Marks of any other third party in any way, including in any advertising or publicity, or as a hyperlink without our prior written consent.
7.2 By submitting, posting or displaying content on or through the Platform, you grant to us a worldwide, non-exclusive, royalty-free license to reproduce, adapt and publish such content on the Platform for the purpose of displaying, distributing and promoting the
Platform or any other services we may provide to you. You further grant to us an irrevocable non-exclusive license to use such content submitted, posted or displayed for the developing and/or marketing of any of our services.
7.3 In the event that you download any software, applications or script from the Platform, the software, applications or script, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed by us to you on a non-exclusive, non-transferable, and non-sublicensable basis for the sole purpose of utilizing our services in accordance with this Platform Agreement. For the avoidance of doubt, we are not transferring and do not transfer, title ownership or any other rights to the Software to you. You shall not redistribute, sell, decompile, reverse-engineer, disassemble or otherwise deal with the Software. Any Software downloaded from the Platform shall be at your own risk.
7.4 You shall not imitate, copy, modify, decompile, disassemble, reverse engineer, distribute, disseminate, reproduce, license or create any derivative works from, assign, transfer or sell, in full or in part and in any way, the Platform or any information, data, products or services obtained from the Platform ("Platform Contents"). Unauthorized conduct or use of the Platform or the Platform Contents may violate ours or any third-party owners' intellectual property rights. You shall be entitled to retrieve and display the Platform Contents on any compatible device owned by you and retain a copy of the Platform Contents for record, provided that you keep intact all accompanying intellectual property rights and other proprietary notices.
8.1 Myshift maintains insurance policies for the benefit of Myshift, Myshift Users and Myshift Business Users that may include the following: commercial general liability, automobile liability, workers compensation and employer’s liability, occupational accident liability, contingent liability, errors and omissions liability, and privacy and cyber security liability insurance.
9.1 The Platform is provided “AS IS” on an “IS AVAILABLE” basis without any representations or any kind of warranties whatsoever (whether expressed or implied by law). We and our licensors disclaim to the fullest extent permitted by law all express, implied and statutory warranties, including without limitation, the warranties as to functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Without limiting the foregoing, we do not warrant that our services, functions contained in or access to the Platform or other content will be timely, uninterrupted or error-free without omission, that defects will be corrected, or that the Platform or its contents are free of infection by computer viruses and/or other harmful or corrupting code, program, macro and such other unauthorized software, or that the download, installation or use of any Systems or content of the Platform in or with any computer will not affect the functionality or performance of the computer. We are not responsible or liable for the deletion or failure to store any content maintained or posted by or through the Platform.
9.2 Third-party sites. The Platform may contain links to other websites which are not maintained by us. Similarly, other websites may contain links to the Platform. We have no control over such sites and resources, and you acknowledge and agree that we are not responsible for the availability or contents of those websites and shall not be liable for any damages or injury arising from the availability or contents of those websites. Any links to other websites are provided as a convenience to you as a user of the Platform, and does not imply our endorsement of the linked website or association with their Users. We disclaim all responsibility and liability, direct or indirect, for any damage or losses (including any virus, spyware, malware, worms, errors or damaging materials contained in the linked sites) caused or alleged to be caused by or in connection with the use or reliance on any such content available on or through any such site or resource, which are accessed and used at your own risks.
9.3 LIMITATION OF LIABILITY. NOTWITHSTANDING Myshift’S OBLIGATIONS IN PARAGRAPH 8.4, IN NO EVENT SHALL Myshift ITS AFFILIATES OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES, OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE WEBSITE OR APP, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Myshift BE LIABLE FOR ANY REPRESENTATIONS, MISREPRESENTATIONS OR OMISSIONS MADE BY Myshift Users REGARDING THEIR ABILITY TO SAFELY PERFORM WORK OPPORTUNITIES FOR THE BUSINESS. THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO ANY AMOUNTS RECOVERABLE BY A PARTY AS AN INSURANCE PAYMENT.
Myshift'S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION OR LOGISTICS SERVICES WITH INDEPENDENT CONTRACTORS FROM THE Myshift PLATFORM TO WORK AS A DRIVER, BUT YOU AGREE THAT Myshift SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OR LOGISTICS SERVICES PROVIDED TO YOU BY ANY THIRD-PARTY PROVIDERS, INCLUDING DRIVERS, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. FURTHER, YOU AGREE TO CARRY ANY REQUIRED GENERAL LIABILITY INSURANCE OR OTHER INSURANCE TO COVER ANY DAMAGES CAUSED BY THE DRIVERS.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE FOREGOING LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
9.4 Indemnification. To the maximum extent permitted under Applicable Law and without prejudice to any other rights we may have under this Agreement, you shall defend, indemnify and hold harmless, and shall keep indemnified, us and any of our service providers, agents (or their sub-agents), contractors (or their sub-contractors), delegates, suppliers, or other third parties we may appoint for the operation of this Platform or the provision of Services to you, directors, officers, employees, subsidiaries, successors or assigns against any losses, including expenses and legal or other professional fees for disputing or defending any action, claim or proceeding, which we may incur or sustain (directly or indirectly) or which may be made against us in any jurisdiction as a result of or in connection with or arising out of: (i) your use of the Platform or our services, (ii) your violation of any term of this Agreement; and/or (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right. To the maximum extent permitted under Applicable Law and without prejudice to any other rights you may have under this Agreement, Myshift shall defend, indemnify and hold harmless, and shall keep indemnified, you and your directors, officers, employees, subsidiaries, successors or assigns against any losses, including expenses and legal or other professional fees for disputing or defending any action, claim or proceeding, which you may incur or sustain (directly or indirectly) or which may be made against you in any jurisdiction as a result of or in connection with or arising out of: (i) Myshift’s provision of the Platform or the Services, (ii) Myshift’s violation of any term of this Agreement; and/or (iii) Myshift’s violation of any third-party right, including without limitation any copyright, property, or privacy right. Notwithstanding the foregoing, Myshift does not have indemnification obligations for claims and losses that are not covered by Myshift’s policies of insurance and Myshift’s indemnification obligations are limited in scope by coverage limits of applicable policies of insurance.
10.1 Applicability of Arbitration Agreement. All claims and disputes arising out of or relating to this Agreement that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Myshift are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
10.2 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
10.3 Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitration and the rights and liabilities, if any, of you and Myshift. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Myshift.
10.4 Waiver of Jury Trial. YOU AND Myshift WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JURY. You and Myshift are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Myshift over whether to vacate or enforce an arbitration award, YOU AND Myshift WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
10.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
10.6 Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
10.7 Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Myshift.
11.1 This Agreement contains the complete, full, and exclusive understanding of the parties as to its subject matter and shall supersede any prior agreement or verbal communication between the parties. Any amendments to this Agreement shall be effective and binding on the parties only if any such amendments are in writing and signed by both parties.
11.2 Amendment. Myshift reserves the right to change this Agreement and any additional terms at any time, effective upon making the modified provisions available on the Platform or by notifying you directly. You are responsible for regularly reviewing this Agreement. Continued use of the Platform after any such changes are made to this Agreement shall constitute your consent to such changes.
11.3 Assignment. You shall not have the right to assign any of such rights, undertakings, agreements, duties, liabilities and/or obligations hereunder, except with our written consent. We may assign or transfer any of our rights hereunder to any party without your consent, but subject to prior notification.
11.4 Survival on Termination. All disclaimers, indemnities and exclusions in this Agreement shall survive the termination of this Platform Agreement.
11.5 Severance. If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further and, for the avoidance of doubt, the rest of this Agreement shall continue in full force and effect and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.
11.6 Governing Law and Jurisdiction. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Myshift agree that all claims and disputes arising out of or relating to the Agreement or the use of the Platform will be litigated exclusively in the United States District Court of Delaware. Further, except to the extent they are preempted by U.S. federal law, the laws of Delaware govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.
11.7 Termination. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no outstanding Shifts or unpaid balances due hereunder.
11.8 Acknowledgment. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT BEFORE ACCEPTING IT.