Terms of Service

1.1. Use of Services. Shiftana shall furnish services specified in the Order Form referencing and incorporating this Agreement (“Services”). The PSA shall be signed by authorized representatives of Shiftana and Customer. This PSA and the associated Order Form constitute the entire agreement between Customer and Shiftana (the “Agreement”). In the event of a conflict between the terms of this PSA and the Order Form, the terms of the Order Form will control.

1.2. Limited License. As long as Customer remains in compliance with the terms and provisions set forth in this Agreement and the PSA, Shiftana shall provide to the Customer (a) a non-exclusive, non-sublicenseable, non-transferable subscription to access and use Shiftana’s hosted services described in the associated Order Form for Customer’s internal business purposes (“Shiftana Service”), and (b) the general field expertise necessary to enable Shiftana to perform the Services described in this Agreement and the applicable Order Forms. The Customer shall, in connection with the performance by Shiftana of the Services hereunder, obtain all permits, licenses, certificates or other administrative or regulatory authorizations as may be required by any governmental authority from time to time or as may be necessary or incident to Shiftana’s performance of its obligations under this Agreement. Shiftana shall use all reasonable efforts to assist the Customer in obtaining such authorizations.

1.3. Shiftana’s Acceptable Use Policy (“AUP”) governs the general policies and procedures for use of the Services. The AUP is incorporated herein by reference. The AUP can be found at http://www.Shiftana.com/aup and its terms are subject to this Agreement and may be updated by Shiftana from time-to-time. THE CUSTOMER SHOULD CAREFULLY READ THE AUP. BY USING THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS THERETO PROVIDED TO CUSTOMER. SHIFTANA RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT FOR ANY VIOLATION OF THE AUP, THE PSA OR THIS AGREEMENT. Shiftana reserves the right to terminate any service in the event Customer breaches the AUP. Shiftana will have no liability to the Customer or other person or entity in any service terminated by Shiftana.

1.4. End User License Agreement. The End User License Agreement found at http://www.shiftana.com/eula (the “EULA”) governs the use by the Customer and other third parties of the Shiftana Application. The Shiftana Application constitutes the Shiftana mobile apps from the Apple iTunes App Store and Google Play Store. Anyone who downloads a Shiftana App for their device, including the Customer will be subject to this EULA. Some terms of the EULA are set by Apple and Google and cannot be modified. THE CUSTOMER SHOULD CAREFULLY READ THE EULA. BY USING THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THE EULA AND ANY MODIFICATIONS THERETO PROVIDED TO CUSTOMER. SHIFTANA RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT FOR ANY VIOLATION OF THE EULA, THE PSA OR THIS AGREEMENT.

1.5. Privacy Policy & Restrictions on Use of Personal Information. Customer’s use of the Services is also subject and governed Shiftana’s Privacy Policy. Shiftana will only collect, process, store and use personal information provided by Customer or its patrons in the manner set forth in the Shiftana Privacy Policy, which may be updated from time to time and is available at http://www.Shiftana.com/privacy-policy.The Customer hereby agrees to review the Privacy Policy published on Shiftana’s website from time to time and agrees that any subsequent access to or use by the Customer of the Services and/or the Website shall constitute Customer’s acceptance of all the changes thereof. To the extent permitted by applicable law and consistent with its legal obligations Shiftana will promptly notify Customer of any confirmed loss, theft of or unauthorized access to personally identifiable information of Customer or its patrons that results in the likely financial, personal, or other harm to those individuals. Except as otherwise required by applicable law, Shiftana will only use personally identifiable information provided to it by Customer as necessary to provide the Products and perform its obligations under this agreement.

1.6. Material and Product Requirements. Unless Shiftana has agreed otherwise in a separate agreement, the Customer must ensure that all material and data placed on Shiftana’s equipment is in a condition that is “server-ready”, which is in a form requiring no additional manipulation by Shiftana (e.g. images are in the correct format and dimensions, etc.) Shiftana will make no effort to validate any of this information for content, correctness or usability. If the Customer’s material is not “server-ready”, Shiftana has the option at any time to reject this material or offer to modify the material to be “server-ready” at an additional charge to the Customer. Shiftana will notify the Customer of its refusal of the material or the cost to modify the material and afford the Customer an opportunity to modify the material or agree to the additional charges requested by Shiftana as soon as practicable after it learns of the same. Use of the Services requires a certain level of knowledge in the use of WIFI networks, image manipulation, web browsers, Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of Shiftana’s services. The Customer must have the necessary knowledge to upload content to a Web site, manipulate images (format and dimensions), configure certain devices and test for WIFI network connectivity. It is not Shiftana’s responsibility to provide this knowledge or customer support outside of the Services agreed to by the Customer and Shiftana.

1.7. Access. In order to use the Services, the Customer and its customers and clients need the equipment necessary to connect to the Internet connection necessary to access it, including wireless routers and mobile devices compatible with the Services. The Customer (or its customers or clients, as the case may be) is responsible for any fees associated with such connection or access (such as those charged by an Internet Service Provider (ISP) or other online service). The Customer and its end-users (members, teams, etc.) will also need to obtain, at their own cost and expense, appropriate computers, wireless routers (to establish and maintain a wireless local area network (WLAN)), related equipment, and software (collectively, the “Customer Computers”). The Customer and its end-users are responsible for installing, maintaining, and operating the Customer Computers. Shiftana is not responsible for any problems caused by any Customer Computer, including any virus or related problems associated with the use of the Services on any Customer Computer. Shiftana does not guarantee and is not responsible or liable for the absence of continuous, uninterrupted or secure access to the Services, as the operation of the Shiftana Web Site, WLAN, and Services may be interfered with by numerous factors outside of Shiftana’s control.

1.8. Bandwidth and Storage Usage. The Customer agrees to provide, or to make arrangements to provide, adequate bandwidth necessary for Shiftana to perform the Services hereunder.

1.9. Links to Other Sites. Shiftana’s web site contains links to third party web sites. These links are provided solely as a convenience to the Customer and not as an endorsement by Shiftana of the contents on such third-party web sites. Shiftana is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party web sites. If the Customer decides to access linked third-party web sites, the Customer does so at its own risk.

1.10. Customer Responsibilities. Customer is solely responsible for the accuracy of all content uploaded to Shiftana’s servers and responsible for making sure the content uploaded is in the proper format (as dictated by Shiftana).

1.11. Independent Contractor Status. Shiftana shall perform the Services as an independent contractor. The number of employees and the selection and retention of such employees of Shiftana shall be determined by Shiftana in its sole and absolute discretion. Shiftana, or a supervisor or manager of Shiftana with whom the Customer may consult concerning the Services, shall be available to the Customer at all reasonable times. All employees, agents, contractors, and subcontractors hired by Shiftana to perform services hereunder shall be deemed to be the employees, agents, contractors and subcontractors of Shiftana, and all salaries and compensation payable to them shall be the exclusive responsibility of Shiftana.

1.12. Shiftana will provide the implementation, configuration, training, or other professional services described in the Order Form (if any) in consideration for the associated fees described in the Order Form in accordance with the terms and conditions in Schedule 2.

1.13. Customer Obligations. Customer is responsible for the following obligations and tasks, at its cost and expense:

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1.13.6. Setup & organization of the schedule area, including labeling of all shifts and teams.

1.13.7. Acquisition and training of staff to setup, organize, and run the schedules.

1.13.8. Registration setup and management, including configuration of member lists, teams, processes and procedures and execution.

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1.14. Shiftana Services. Shiftana’s services include the following:

1.14.1. Shiftana will setup an Organization and Team manager account on Shiftana Application and provide access information to the Customer. This access will be available to the Customer for the entire Term of the PSA.

1.14.2. Shiftana offers multiple Shiftana Application Packages (“Package(s)”). Each Package may have limitations on the number of teams or schedules a Customer may run during the Term or the number of members each team may contain. The Package that Customer has purchased and the respective limitations shall be detailed on the applicable Order Form signed by Customer.

1.14.2.1 Each Package may also set a resource limit (“User Limit”) that reflects the maximum number of users that access a Customer’s schedules or teams (via mobile app or web). A user (“User”) is defined as any viewer (viewing any event page) or registered user. If the Customer exceeds this limit at any time, Shiftana at its sole discretion, reserves the right to upgrade the Client to a different Package that will accommodate the number of users accessing the Customer’s Teams or schedules.

1.14.3. Shiftana will provide access to its Shiftana University online knowledge base (“Knowledge Base”) that provides self-paced training and documentation on the Shiftana platform and services. This knowledge base is included in the price of any software Package and is available at LINK_TO_SERVICE. Shiftana does not guarantee the availability or accessibility of the Knowledge Base at any particular time, or from any particular location or device. Moreover, while Shiftana will make best efforts to keep the Knowledge Base up to date, Shiftana cannot guarantee the accuracy or completeness of the Knowledge Base.

1.14.4. Shiftana will provide the following remote support: Shiftana will provide remote email and online technical support in configuration through Shiftana’s support system at http://service.Shiftana.com or service@Shiftana.com. This support is business hours support: Monday – Friday 6 AM – 6PM EST. Shiftana will provide remote support to the Customer via Shiftana’s online chat and support system. Shiftana will make available on-call staff to handle technical issues regarding to the Shiftana service. Shiftana will provide the Customer with instructions on how to reach on-call staff prior to their event date.

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1.15. Optional Shiftana Services. Shiftana’s services may include the following:

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1.16 Compliance with Law. Each party shall comply with all applicable laws, rules and regulations in its performance under this Agreement. Without limiting the previous sentence, Customer, is responsible and liable for obtaining all applicable registrations, licenses, permits and other permissions necessary to operate or run the teams for which Customer is utilizing the Services. 1.17 Shiftana has the right, but not the obligation, to monitor any activity and content associated with the Shiftana Services. Shiftana may, but shall not be obligated to, investigate any reported violation of this Agreement or any of its policies and guidelines or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials on the Site, all of which may be taken by Shiftana without liability to you or any other person or entity.

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1.19 Resource Limits. Customer may purchase a specific software license that includes a resource limit on the total number of users allowed to access the Shiftana Application.

2.1 Compensation for Services. As compensation for the Services provided by Shiftana pursuant to this Agreement, the Customer shall pay to Shiftana the fees and compensation as described and set forth in the applicable Order Form that references this Agreement (“Fees”). The Customer is solely liable and responsible for all taxes and related assessments made regarding any sale by the Customer using Shiftana’s services.

2.2 Payment for services. Shiftana will provide schedule for fees due in the applicable Order Form. All invoices will be due and payable in U.S. Dollars (unless otherwise agreed upon) within the due date specified on the invoice. Unless otherwise agreed in an Order Form, Shiftana will invoice Customer immediately upon execution of the contract, with fees due as specified in the applicable Order Form. Invoicing will occur via email. No refunds will be made except as provided in Section 4 “Warranty” set forth below.

2.3 Non-Payment and Late Fees. All fees are due on the date specified on the applicable Order Form. In addition, Shiftana reserves the right to charge a fee on late payments. This fee shall be listed on the applicable Order Form. Unless specified otherwise on the applicable Order Form, the following non-payment terms shall apply: (a) Shiftana can suspend the Customer’s account and access to the Shiftana Software if any payments due are over 45 (forty-five) days past due, and

2.4 Travel Expenses. In addition to any and all Fees, Customer will reimburse Shiftana for pre-approved expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Shiftana in connection with providing any services detailed in the applicable Order Form (“Expenses”). Shiftana will provide reasonable documentation for all Expenses as requested by Customer and Customer shall pre-approve expenses. Upon approval by Customer (which shall be provided within a reasonable timeframe), Shiftana will invoice Customer for travel expenses as incurred.

3.1 Grant of License to Shiftana. The Customer hereby grants to Shiftana a non-exclusive, worldwide, and royalty-free license for the entire term of this Agreement to use the Customer’s content provided to Shiftana or uploaded to Shiftana’s web site “Customer Content”) as necessary for the purposes of rendering, providing, and operating the Services to the Customer under this Agreement. The Customer expressly (a) grants to Shiftana a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agrees that such caching is not an infringement of any of the Customer’s intellectual property rights or any third party’s intellectual property rights.

3.2 Shiftana Materials and Intellectual Property. All materials, including, without limitation, computer software (in object code and source code form), data or information developed or provided by Shiftana or its suppliers or agents prior to, outside of, or pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Shiftana to provide the Services to the Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Shiftana or its suppliers, including, without limitation, any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Shiftana during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden. The Customer may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused by failure to abide by the terms of this Agreement.

3.3 Trademarks. The Customer hereby grants to Shiftana a limited right to use the Customer’s trademarks, if any, for the limited purpose of permitting Shiftana to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of the Customer’s trademarks or to use the Customer’s trademarks with any other products or services outside the scope of the Services provided under this Agreement except that Shiftana may use Customer’s logo in Shiftana marketing materials. The limited trademark use rights granted under this section terminates upon termination of this Agreement.

4.1 Customer and/or Third Party Acts. Shiftana is not responsible in any manner for any nonconforming Services to the extent caused by the Customer or by its employees, agents, affiliates or representatives, which includes the Customer’s use of any equipment or applications not specifically recommended for accessing or interfacing with any aspect of the Services. In addition, Shiftana is not responsible for loss or corruption of data in transmission, or for failure to send or receive data, caused by events beyond Shiftana’s reasonable control.

4.2 Shiftana Warranty

4.2.1 Shiftana warrants that the Services will conform in all material respects with the terms of this Agreement, and will be provided in a good and workman-like manner consistent with standard practices in the scheduling facilitation business. As Shiftana’s sole obligation and Customer’s sole and exclusive remedy for a breach of the warranty in this Section 4.2.1, Shiftana shall refund to Customer any fees paid for the defective Services.

4.2.2 EXCEPT FOR THE WARRANTY SPECIFIED IN THE PREVIOUS SECTION, ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY SHIFTANA UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT SHIFTANA EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH SHIFTANA’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. SHIFTANA DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SHIFTANA DOES NOT MAKE AND HEREBY DISCLAIMS, AND THE CUSTOMER HEREBY WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

4.3 The Customer’s Warranties and Representations to Shiftana. The Customer warrants, represents, and covenants to Shiftana that (a) the Customer and its representative signing this Agreement is at least eighteen (18) years of age or is a duly organized and validly existing entity; (b) the Customer possesses the legal right and ability to enter into this Agreement; (c) the Customer will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) the Customer will be financially responsible for the use of its account; (e) the Customer has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) the Customer has verified or will verify the accuracy of materials and content distributed or made available for distribution by Customer or Customer’s agents via the Services, including, without limitation, the Customer’s content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, will be complete and accurate; and (g) the Customer Content does not and will not infringe or violate any right of any third party (including any intellectual property rights or rights of publicity), be defamatory, or violate any applicable law, regulation or ordinance. Additionally, the Customer hereby represents and warrants to Shiftana that (a) Customer owns or has obtained all necessary rights in and to the Customer Content to allow Shiftana access to, possession of, use of the Customer Content that is reasonably necessary to provide the Services, and.

5.1 Limitations. IN NO EVENT SHALL SHIFTANA HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. SHIFTANA SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF SHIFTANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF SHIFTANA TO THE CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SHIFTANA BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY SHIFTANA UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, THE CUSTOMER HEREBY RELEASES SHIFTANA FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 5. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SHIFTANA’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT THIS LIMITATION ON DAMAGES IN THIS PARAGRAPH IS INCLUDED AS A MATERIAL INDUCEMENT TO SHIFTANA TO ENTER INTO THIS AGREEMENT AND THAT THE PRICING AND OTHER TERMS MADE AVAILABLE TO CUSTOMER WOULD NOT HAVE BEEN AVAILABLE IF THIS PARAGRAPH WERE NOT INCLUDED IN THE AGREEMENT. THE CUSTOMER SHALL BE PRECLUDED FROM MAKING ANY SUCH CLAIM FOR DAMAGES IF SUCH CLAIM IS NOT MADE WITHIN THE ONE (1)-YEAR PERIOD FOLLOWING THE EVENT DATE.

5.2 Interruption of Service. The Customer hereby acknowledges and agrees that Shiftana will not be liable for any temporary delay, lack of connectivity, outages or interruptions of the Services not caused by Shiftana.

5.3 Indemnification.

a) The Customer will defend, indemnify and hold harmless Shiftana and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an “Indemnitee”) from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) the Customer’s negligence, gross negligence, or willful misconduct; (ii) the Customer’s breach of any term, obligation, representation or warranty in this Agreement, (iii) the Customer’s improper or illegal use of the Services.

b) Shiftana will defend, indemnify and hold harmless the Customer and its Indemnitees from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to Shiftana’s gross negligence, or willful misconduct.

5.4 A party seeking indemnification under this Section will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim; and (c) provide to the other party all available information and assistance.

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6.1 Term. The Agreement commences on the Effective Date and continue until termination or expiration of all Order Forms (“Term”). The initial term of an Order Form shall begin on the date set forth in the Order Form and continue until the Expiration Date set forth in in the Order Form, or one-year if the Expiration Date is not specified (“Initial Term”). Each Order Form shall automatically renew for additional terms each of the same length as the Initial Term. (each, a “Renewal Term”), unless either party provides written notice of its intent not to renew at least forty-five (45) days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and each Renewal term are collectively referred to as the “Order Term”.

6.2 Termination. Either party shall be permitted to terminate this agreement or an Order Form upon written notice to the other party if (i) the other party breaches this Agreement and fails to cure such breach within thirty (30) days following written notice by the non-breaching party; (ii) the other party makes a general assignment of a substantial portion of its assets for the benefit of its creditors; or (iii) a bona fide bankruptcy, liquidation, receivership, or similar proceeding is instituted by or against the other party and such proceeding is not dismissed within one-hundred-twenty (120) days after the institution thereof.

6.4 Effect of Termination. Upon any termination of this Agreement and all Order Forms, the parties shall have no further rights, duties or obligations hereunder, other than those accruing prior to the effective date of termination and those set forth in Section 3.2 (“Shiftana Materials and Intellectual Property”) and Sections 4.2.2, 4.3, 5, and 7, which shall survive any termination of this Agreement. In addition, Customer understands that upon such termination,

6.4.1 Access to the Shiftana Services, and all rights granted to Customer under this Agreement, will immediately cease;

6.4.2 Customer Content (including, without limitation, account information) will be immediately erased, provided that Shiftana may, in its discretion, retain such Customer Content in Shiftana’s archived backup files. Customer understands that recovery of this information if the Customer decides to re-instate their account under a new agreement (or asks Shiftana to send to Customer its account information) will require a reinstatement / data recovery fee at Shiftana’s then current rates.

6.4.3 All amounts owed to Shiftana under this Agreement and the Order Forms shall be immediately due and payable in accordance with this Agreement and the applicable Order Form.

7.1 Confidentiality. The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or be disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. “Confidential Information” means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information are (a) information in the public domain, (b) information developed independently by a party without reference to information disclosed under this Agreement, or (c) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control ofc either party, but in such case, prior to disclosure, the disclosing party shall give written notice to the other party to permit that party an opportunity to challenge such disclosure. If either party is subpoenaed, such party shall give written notice to the other party to permit that party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing party, each party shall promptly return all Confidential Information of the other party. This provision shall survive the termination of this Agreement for two (2) years.

7.2 Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

7.3 Amendments. This Agreement may not be amended except by an instrument in writing signed by Shiftana and the Customer.

7.4 Assignments. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.

7.5 No Waiver. No party’s failure to enforce the strict performance of any provision of this Agreement will constitute a waiver of such party’s right to subsequently enforce such provision or any other provisions under this Agreement.

7.6 Survival. All provisions of this Agreement relating to warranties, intellectual property rights, limitation and exclusion of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

7.7 Relationship of the Parties. The parties hereto agree that it is not the purpose or intention of this Agreement to create any trust or commercial relationship or any other corporate relationship for any purpose whatsoever. Except as specifically provided herein, nothing in this Agreement shall be construed to make either party a partner, employer, employee, joint venturer, legal representative or agent of the other, and each party hereby agrees not to hold itself out as such or make any statement or representation that it has any such relationship. Neither party is authorized to accept any orders on behalf of the other party or to otherwise exercise or waive any right or incur, assume, or create any debt, obligation, contract, or release of any kind whatsoever in the name of or on behalf of the other party.

7.8 Notices. All notices and other communications required or permitted hereunder shall be in writing and, unless otherwise provided in this Agreement, shall be deemed to have been duly given when delivered in person or by mail (or when dispatched by telegram or electronic facsimile transfer confirmed in writing by mail simultaneously dispatched) to the addressee at the address specified below: n If to Shiftana: Shiftana Inc., CLIFTON ADDRESS If to the Customer: Address and Contact information to be specified in the applicable Order Form

7.9 No Fiduciary Relationship; No Third-Party Beneficiaries. Shiftana is not the agent, fiduciary, trustee or other representative of the Customer. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

7.10 Governing Law; Exclusive Jurisdiction and Venue. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID STATE. Each of Shiftana and the Customer (a) hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Delaware, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement, and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.

7.11 Statutory Exceptions for Public Institutions. If the Customer is a qualified public educational or government institution and any part of this Agreement, such as, by way of example, all or part of the indemnification section (5), is invalid or unenforceable against Customer because of applicable state or federal law, then that portion shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If Delaware law is precluded, this Agreement shall be construed under the laws of the state in which Customer’s public educational or government institution is located.

7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all of which together shall constitute one and the same instrument.

7.13 Entire Agreement. This Agreement, including the Schedules and applicable Order Form referenced attached hereto constitute the entire agreement of the parties with respect to the subject matter hereof. In the event of conflict between this Agreement and the Order Form, the applicable Order Form shall prevail.

7.14 Force Majeure. Shiftana will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond Shiftana’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or IT failures or delays, third party service providers, computer failures involving hardware or software not within Shiftana’s possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. Epidemics of disease are not a Force Majeure Event unless a government order precludes performance of an application on a particular date. In the case of a Force Majeure Event, the Customer’s sole remedy will be either, at Customer’s election, to: (1) conduct a virtual event within the Term; or (2) renew the Customer’s subscription for an additional term (“Renewal Term”), wherein Customer may conduct the un-used event within the Renewal Term. Customer will only be authorized to run one extra event during the Renewal Term for each event not run due to a Force Majeure Event. Regardless, under no circumstances will any fees or payments be refunded in any term for the purchase or renewal of Services due to a Force Majeure Event.

7.15 Headings. The section headings of this Agreement are only for the purpose of reference and shall not affect the meaning hereof.