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Welcome to www.workshiftly.com. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “WorkShiftly Services”).
PLEASE READ THIS AGREEMENT BEFORE USING THE SERVICES OF EMAGEIA (PTY) LIMITED (“Company”). BY ACCESSING OR USING COMPANY’S WORKSHIFTLY SOFTWARE OR SERVICES OFFERING, YOU (“Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE WORKSHIFTLY SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE WORKSHIFTLY SERVICES.
Company may, in its sole discretion, elect to suspend or terminate access to, or use of the WorkShiftly Services to anyone who violates these Terms.
If you register for a free trial of the WorkShiftly Services, the applicable provisions of these Terms will govern that free trial.
The original language of these Terms is English. Company may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
“Account” means the primary means for accessing and using the WorkShiftly Services, subject to payment of a Fee designated in the selected Plan.
“Activity” means appointments, tasks, events and actions (such as call, meeting, lunch or a custom type) on a calendar that can be associated with a Deal, a person or an Organization
“Authorization” means the set of rights and privileges on the Web Site assigned to a User by a Client.
“Client”: A natural or legal person who has accepted these Terms with the Supplier.
“Client Data” means Files and any other digital data and information, which is subjected to the WorkShiftly Services or otherwise inserted to the System by the Client (including the specific Users, Products, persons, Organizations, Activities, Pipelines, Stages and Deals associated with the Client).
“Content” means any data and information available through WorkShiftly Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments.
“Deal” means a Client’s ongoing, lost or won sales to an Organization or person.
“Fee” means regular payment for using the activated Account.
“Files” means documents of any kind (images, spreadsheets, text files, etc.) that are inserted into the System by the Client, and usually associated with a particular Deal, Person or Organization.
“Free Trial” means temporary access for the purposes of trying out the Web Site and WorkShiftly Services in accordance with any selected Plan without paying a Fee.
“Guidelines” means additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the WorkShiftly Services.
“Organization” means legal persons (such as companies) and other entities with which that Client is making Deals.
“Emageia” means a Proprietary Company established under the Corporations Act 2001 of Australia, having its principal place of business at Suite 03, 1044A Dandenong Road, Carnegie, Victoria 3163 Melbourne.
“Emageia material” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, a compilation of the content, code, data, and all other elements of the WorkShiftly Services.
“Plan” means various criteria related to the use and functionality of the WorkShiftly Services and on which the Fee is based.
“Platform” means the WorkShiftly Human Resource management application.
“Products” means the goods or services that a Client is offering to persons and Organizations.
“Productivity Status”: Productive, Unproductive or Neutral status of the websites/applications used by the user .
“Reseller” means third party entity that (i) purchases WorkShiftly Services from Supplier and resells such WorkShiftly Services to Clients, (ii) bills such Clients directly and (iii) provides such Clients with customer service.
“Special Terms” means any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms.
“Stage” means the status of a Deal at a certain point in time.
“System” means the integrated cloud computing solution for providing the WorkShiftly Services, including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith.
“User” means a natural person granted with the Authorization to use the Account on behalf of a Client.
“Website” means the compilation of all web documents (including images, php and html files) made available via www.workshiftly.com or its sub domains or domains with identical names under other top domains and owned by Supplier.
The use of the WorkShiftly Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
You may not, without Company’s prior written consent, access the WorkShiftly Services (i) for production purposes, (ii) if you are a competitor of Workshiftly, (iii) to monitor the availability, performance or functionality of the WorkShiftly Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the WorkShiftly Services. Please check these Terms periodically for changes. Your continued use of the WorkShiftly Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the WorkShiftly Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Company will be governed by the Terms in effect at the time such dispute arose.
Company will (a) make the WorkShiftly Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the WorkShiftly Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the WorkShiftly Services available 24 hours a day, 7 days a week, except for:
Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Company personnel except (a) to provide the WorkShiftly Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
Company may use service providers to perform the Services. Company will make commercially reasonable efforts to ensure that data transfers to service providers meet requirements applicable to Clients’ processing of data and will provide information on such data transfers in these Terms for Client’s consideration.
Certain features, functions, parts or elements of the WorkShiftly Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
Each Client may have only one Account. If several persons need to use an Account on behalf of Client, Client must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.
If Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. Company is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, Company may, in its discretion, request additional information or proof of the person’s credentials. If Company is not certain if a User has been granted Authorization, Company may, in its sole discretion, prevent such User from accessing the WorkShiftly Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
The Client and any User associated with an Account must provide Company with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
Company shall provide Client with a username and password (“Login Credentials”) to be used to log in to its Account unless the Client uses the single sign-on feature or another service to log in. These Login Credentials must not be used by multiple persons. If Client has designated several Users, each User will be provided with separate Login Credentials. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify Company:
Client may terminate these Terms at any time as provided in Section 17.
Company shall permanently delete the Account after six months of the effective date of the termination.
The use of an Account is subject to a Fee. Upon sign-up for an Account, the Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
Any Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Company. In such an event, the Client’s credit card on file with the Company will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
In the event of a Downgrade of an existing plan, the said change will be effective immediately upon client indication and the amount paid in advance will be brought forward to the next payment cycle. In the event of an Upgrade of an existing plan, the said change will be effective immediately upon client indication and the related payment will be considered from the next payment cycle.
A new Client may be entitled to a Free Trial, unless the Client has applied for the Account as a result of an ongoing marketing campaign organized by the Company. The Client is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Plan and pay the first Fee. If the Client does not pay the first Fee within 2 weeks as of the expiry of the Free Trial, Company has the right to permanently delete the Account, including all Client Data therein.
The following provisions are applicable only if you purchase access to the WorkShiftly Services directly from the Company.
Company may seek pre-authorization of Client’s payment card account prior to your purchase of WorkShiftly Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts described herein, and authorize Company to charge all sums described in these Terms to such card account. You agree to provide Company updated information regarding your payment card account upon Company’s request and any time the information earlier provided is no longer valid.
If Company has not sought pre-authorization of your payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
Upon delay with any payments, Company may require the Client to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. Interest may be charged at the current prescribed interest rate in accordance with the Penalty Interest Act 1983.
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through the WorkShiftly software by the Company. By uploading Client Data to the Platform, Client authorizes Company to process the Client Data. The Client is responsible for ensuring that:
Company does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends to double check Client Data transmitted, submitted or posted to or through the WorkShiftly Software. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Company, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the WorkShiftly Software.
Company is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of Company or if there is reason to believe that certain Client Data is unlawful, Company has the right to:
Company may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, Company will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Company is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Company is a party, and Client is not contesting the disclosure, Client will reimburse Company for its reasonable cost of compiling and providing secure access to that confidential information.
Subject to these Terms, and the payment of the applicable service Fee, Company grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the WorkShiftly Software to:
If Company determines Client usage of the Services to be outside of the permitted and intended use as outlined herein, or any features to be significantly excessive in relation to other Users, Company reserves the right to suspend respective Client Account, (or part thereof) until Client assures the Company that Client shall refrain from further abuse of the Services.
Company shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. Company shall respond to enquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.
The contacts for all enquiries of support are:
Notwithstanding the foregoing, if you purchased access to the WorkShiftly Software from a Reseller, then first-line technical support will be provided by the Reseller and not by the Company.
Company reserves the right to modify the WorkShiftly Software or any part or element thereof from time to time without prior notice, including, without limitation:
As applicable, Client may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the WorkShiftly Software, will become effective thirty (30) days before the effective date of such modification.
If the Client does not accept the modification, the Client shall notify Company or Reseller (if Client purchased access to the WorkShiftly Software from a Reseller) before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Client’s continued use of the WorkShiftly Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Company shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the WorkShiftly Software, or any part or element thereof.
If a client changes the productivity status of a website or application used by the user, the updated productivity status will affect the user’s historical productivity status data of that website or application. The Company is not responsible for the changing historical productivity statuses.
The Client hereby instructs the Company to process the data as described in these Terms.
The Company provides the Platform where the Client, as the data controller, can collect, store and organize the personal data of the Client.
The Company will process data on behalf of the Client until the termination of the WorkShiftly Services in accordance with these Terms. Upon termination, Company will store the Client’s data for a period of three months, should the Client wish to reopen the Account to resume the use of the WorkShiftly Software or to export Client Data, unless instructed otherwise by the Client. After that, the contents of the account may be recoverable from Company’s backups for another three months. The Company deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless any law requires storage of the personal data.
The Client’s rights and obligations regarding Client Data are provided in sections 4 through 10 of these Terms. The Company ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The Company undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.
Client and its authorized Users may use the WorkShiftly Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
The Client or any User may not, without Company’s prior express written consent (e-mail, fax, Skype, etc.):
Company takes the privacy of its Clients and Users very seriously. Company’s Privacy Policy at www.WorkShiftly.com/#/privacy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Company’s collection, use, and disclosure of Client’s or User’s personal information.
Workshiftly’s Intellectual Property Rights in the WorkShiftly Services. The WorkShiftly Services, WorkShiftly Materials, WorkShiftly trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Company and its third party vendors and hosting partners. WorkShiftly Materials are protected by copyright, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Company, its affiliates and licensors retains all right, title and interest in such WorkShiftly Services, WorkShiftly Materials, WorkShiftly trade names and trademarks, and any parts or elements. Your use of the WorkShiftly Services and WorkShiftly Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the WorkShiftly Materials is strictly prohibited unless you have received the express prior written permission from Company or the otherwise applicable rights holder. Company reserves all rights to the WorkShiftly Services, WorkShiftly Materials and WorkShiftly trade names and trademarks not expressly granted in the Terms.
Subject to these Terms and the payment of the applicable service Fee, Company grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the WorkShiftly Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the WorkShiftly Services or as otherwise permitted by applicable law.
Company may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. Company may not otherwise use or display Client Data without Client’s written consent. Company respects your right to exclusive ownership of your Client Data. Unless specifically permitted by you, your use of the WorkShiftly Services does not grant Company the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by you or stored in your Account for Company’s commercial, marketing or any similar purpose. Client expressly grants Company the right to use and analyze aggregate system activity data associated with use of the WorkShiftly Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the WorkShiftly Services operate, and to create new features and functionality in connection with the WorkShiftly Services in the sole discretion of Company.
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the WorkShiftly Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize the Companys to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the WorkShiftly Services and these Terms, and to grant the rights and license set forth in Section 12.3.1 and (ii) Client Data, Company’s or any WorkShiftly Licensee’s use of such Client Data pursuant to these Terms, and Company’s or any WorkShiftly Licensee’s exercise of the license rights set forth in Section 12.3.1 do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Company to any third party for the performance of any WorkShiftly Services Client has chosen to be performed by Company or for the exercise of any rights granted in these Terms, unless Client and Company otherwise agree.
If Client or a User provides the Company with any comments, bug reports, feedback, or modifications for the WorkShiftly Services (“Feedback”), Company shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the WorkShiftly Services. Client or User (as applicable) hereby grants Company a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. Company shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if the Company deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
The WorkShiftly Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, Company does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Company makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK. Any content referred to as community provided is provided by third parties and not developed or maintained by WorkShiftly. By using any community marked code or libraries in your software development, you acknowledge and agree that WorkShiftly is not in any way responsible for the performance or damages caused by such community provided code or library.
UNLESS OTHERWISE EXPRESSLY STATED BY COMPANY, THE WORKSHIFTLY SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE QUALITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE WOKRSHIFTLY SERVICE OR ANY CONTENT. COMPANY WARRANTS THAT THE SAAS SERVICE WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. COMPANY DOES NOT GUARANTEE THAT THE SAAS SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SAAS SERVICES ERRORS OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOTWARE, SYSTEM OR DATA. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER COMPANY NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL COMPANY OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS. UNLESS OTHERWISE EXPRESSLY STATED BY COMPANY, COMPANY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE WORKSHIFTLY SERVICES, WORKSHIFTLY MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless Company and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the WorkShiftly Services, WorkShiftly Materials, representations made to the Company, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with such defense of these claims. Company shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Company, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. Company may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date. If a third party makes a claim against Company that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Company and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
You agree to defend, indemnify and hold harmless Company and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the WorkShiftly Services, WorkShiftly Materials, representations made to the Company, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with such defense of these claims. Company shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Company, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. Company may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date. If a third party makes a claim against Company that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Company and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
These Terms may be terminated for convenience in the following situations; (a) by the Client any time by clicking the cancellation link on the Web Site, which will guide them through the cancellation process when logged in to the Account, or if the Client is paying for the Service with a Stripe account, by revoking the billing agreement on its Stripe profile; or if the client is paying for the Service via a Reseller, by means agreed upon between the Client and the Reseller; (b) by Company upon decision to end provision of the WorkShiftly Services and close the Platform; or (c) immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
Upon termination of these Terms, (a) Company shall deactivate and permanently delete the Account, after six months of the effective date of termination of these Terms. If the Client has specifically requested for an earlier deletion of the Account, Company shall fulfill such request within 1 month of its receipt of such request. (b)Client must: (i)stop using and prevent the further usage of the WorkShiftly Services, including, without limitation, the Platform; (ii) pay any amounts owed to Company under these Terms; and (iii) discharge any liability incurred by the Client before under these Terms prior to their termination; and The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16 and 18 (Interpretation, Compelled Disclosure, Restrictions, Privacy, Intellectual Property Rights, Disclaimers, Indemnification, Limitation of Liability, General Provisions)
If Company terminates these Terms as a result of an uncured breach by a Client or User, Company is entitled to use the same or similar remedies against any other persons who use the WorkShiftly Services in conflict with these Terms. Notwithstanding the foregoing, Company may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the WorkShiftly Services. If Company has reasonable grounds to believe that the Client’s or User’s use of the WorkShiftly Services, including the Account may harm any third persons, Company has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons. The Company has the right to suspend access to all or any part of the Service, including removing Content, at any time for violation of this Agreement or to protect the integrity, operability, and security of the Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Service or any third party, Company typically provides notice in the form of a banner or email on or before such suspension. Company will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Service.
This contract is entered between Emageia (Pty) Limited. (‘Emageia’), as the licensor of the software (except for Excluded Software defined above) on behalf of itself, and its affiliates, and related materials, including printed or online documentation, updates or upgrades provided by Emageia, and any data files created by the operation of the software, which is collectively referred to as the “WorkShiftly”. The WorkShiftly Software includes all of the software in your Product as defined including updates or modified software provided to you by Emageia, whether stored or downloaded via any method, but not Excluded Software as defined below. Emageia may add to, change, or remove any part, Terms of Service, including but not limited to as it applies to the Software at any time without prior notice or liability to you. Any such additions, changes, or removals posted at www.workshiftly.com shall apply as soon as they are posted. By continuing to use the WorkShiftly or Software after so posted, you are indicating your acceptance of these terms.
The WorkShiftly Services provided by this Agreement shall be governed by the laws of State of Victoria (Australia) excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) and shall not apply. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with governing law of Australia.
Customer’s satisfaction is an important objective to Company in performing its obligations under this Terms of Service. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of WorkShiftly Services or the grounds for the termination hereof, the parties agree to hold a meeting (online or offline) within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by resorting to arbitration in accordance with the Commercial Arbitration Act 2011 (VIC) for the time being in force, which rules are deemed to be incorporated by reference in this clause.
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and either Company, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
Customer acknowledges these terms are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Company’s ability to provide the WorkShiftly Services or other technology, including any features or functionality first developed for Customer, to other parties.
Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, pandemics, communication line failures, and power failures
The parties have the status of independent contractors, and nothing in these Terms nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in these Terms, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
These Terms are the entire agreement between Client and Company regarding Client’s use of the WorkShiftly Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Company’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Except as otherwise permitted in these Terms, all notices related to these Terms shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service (d) when sent by email to the point of contact or the Administrative User of the Customer. All other notices to you will be addressed to the relevant Services system administrator designated by you.
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