PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES. USING THE SERVICES INDICATES THAT YOU ACCEPT THE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU ARE NOT PERMITTED TO AND YOU SHALL NOT USE THE SERVICES.

Agreement between User and FillShift

These FillShift Terms of Use (“Terms of Use”) govern your use in any manner of any of the Services (as defined below) offered by or through FillShift Inc., (“FillShift” “we” “us” “our”), or any of its parents, subsidiaries or affiliates, wherever or however offered, your use constitutes your acknowledgment that you have read, agree with and consent to be bound by all the terms and conditions set forth in these Terms of Use, and all other policies, rules regulations, terms and conditions that otherwise appear in connection with the Services. These Terms of Use are a legally binding contract between you on the one hand and FillShift on the other hand. These Terms of Use govern all use of the Services. For purposes of the Terms of Use, “Services” is defined as any and all capabilities provided through the FillShift family of websites, software and communication services.

FILLSHIFT PROVIDES THE WEBSITE AND SERVICES SOLELY ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH SUCH TERMS AND CONDITIONS SET FORTH IN THE TERMS OF USE.

Acknowledgement and Acceptance of the Terms of Use

BY USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THESE TERMS OF USE AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS OF USE. IF YOU ARE USING THE SERVICES ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BE BOUND BY THESE TERMS OF USE ON YOUR EMPLOYER’S BEHALF.

If you do not wish to be bound by these Terms of Use, please stop using the Services now.  Your agreement to be bound with these Terms of Use becomes effective immediately upon commencement of your use of the Services.

These Terms of Use were last modified on February 16, 2015.  FillShift expressly reserves the right to change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review these Terms of Use from time to time and that your continued use of the Services after such modifications will constitute your acknowledgement of the modified Terms of Use and your agreement to abide and be bound by the modified Terms of Use.

Any additional posted rules, policies, schedules or other supplemental documents published are hereby incorporated by reference into these Terms of Use.

Services

FillShift provides various Services at our website www.fillshiftcanada.com together with other websites and communications services.  The Services available include, but are not limited to, shift scheduling, open shift management and request management for casual, part-time or full-time labour.

FillShift reserves the sole right to either modify or discontinue the Services, including any of the features, at any time with or without notice to you. FillShift will not be liable to you or any third party should we exercise such right.

Privacy

Your use of the Services is subject to FillShift’s Privacy Policy. Please review our Privacy Policy at www.fillshiftcanada.com/privacy, which governs the Services and informs users of our data collection practices. The information FillShift obtains through your use of the Services is subject to our Privacy Policy.

Your Account

To access the Services, you may be required to use a username and password to log in to your account. User logins are for designated Users and cannot be shared or used by more than one u.  You are responsible for the confidentiality and use of your user name and password and responsible for all charges resulting from the use of your Account, including unauthorized use prior to your notifying us of such unauthorized use. You shall promptly notify us of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any user’s password and/or user name.

Electronic Communications

You are responsible for providing, at your own expense, all equipment and third-party services (e.g. Internet access, email service, TEXT texting service) necessary to access the Services.

You are responsible for maintaining any security of your user identification, and other confidential information relating to your FillShift account.

We are able to deliver messages to the most major and minor carriers in Canada. If we are unable to deliver to your carrier, you may send an email to support@fillshiftcanada.com including the name of the carrier.

You are responsible for message and data rates that may apply for any text messages sent to you from us and to us from you. You can control the frequency of text messages you receive by changing the frequency in your FillShift account. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the Services, you can send an email to support@fillshiftcanada.com.

Links to Third Party Websites / Third Party Services

FillShift may contain links to other websites or services that are not owned or controlled by FillShift or otherwise include references to information, documents, software, materials and/or services provided by other parties. You acknowledge that we are not responsible for the accuracy, legality, privacy practices or the content of such other websites nor are we responsible for errors or omissions in any references to other parties or their products and services. We encourage our users to read the terms of use and privacy statements of each and every website they visit. The ability to access information of third parties from FillShift, or links to other websites or locations, is for your convenience and does not signify our endorsement of such third parties, their products, their services, other websites, locations, their content or any warranty of any kind, either express or implied.

Certain Services made available by FillShift are delivered by third-party websites and organizations. By using any product, service or functionality originating from the www.fillshiftcanada.com domain, you hereby acknowledge and consent that we may share your information and data with any third party with whom we have a contractual relationship solely for the purpose of providing the Services on our behalf to our users and customers.

Unlawful or Prohibited Use and Intellectual Property

Subject to these Terms of Use and your compliance with the Terms of Use, FillShift grants you, and you accept a limited, non-exclusive, non-transferable, revocable license to access and use the Services strictly in accordance with these Terms of Use and all applicable local, provincial, and national laws and regulations.  As a condition of your use, you warrant to us that you will not use the Services for any purpose that is unlawful or prohibited by these Terms of Use.  You may not use the Services in any manner which could damage, disable, overburden or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services, including by data mining, data gathering or other automatic tools to collect data from the Services, without our express permission.

All content included as part of the Services, such as text, graphics, logos, images, communications, as well as the compilation thereof, and any software used to provide the Services, are the property of FillShift or our suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, provided by the Services. Your use of the Services does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content.  You will use protected content solely for your personal use, and will make no other use of the content without express written permission of FillShift and the copyright owner.  You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of FillShift of our licensors except as expressly authorized by these Terms of Use.

Any rights not expressly granted herein to use the Services are reserved by FillShift in full. FillShift reserves the right, in its sole and absolute discretion, to terminate your access to the Services, at any time, for any reason or for no reason at all, without any notice, prior or otherwise.

Use of Communication Services

The Services may include comment areas, bulletin board services, forums, calendars, texting and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group.  You agree to use these communication facilities only to post, send and receive messages and material that are proper and related to the Services.

The Services allow you to send Electronic Communications directly to FillShift and to third parties. You agree to comply with all applicable local, provincial, federal, and foreign laws, treaties, regulations, and conventions in connection with your use of the Services, including without limitation those related to privacy, electronic communications and anti-spam legislation. . You agree to comply with the export laws and regulations of Canada and other applicable jurisdictions in using the Services and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, you will not post any material or send any Electronic Communication from the Services that is unlawful, harassing, libelous, obscene, tortious, defamatory or threatening, invasive of the privacy of another person or violative of any third-party rights. You will not do any “mirroring” or “framing” of any part of the Services, or create Internet links to the Services which include log-in information, user names, passwords, and/or secure cookies. You will not in any way express or imply that any opinions contained in your material or Electronic Communications are endorsed by FillShift. You will ensure that all access and use of the Services by users is in accordance with these Terms of Use, including but not limited to those users that are contractors and agents, and affiliates. Any action or breach by any of such contractors, agents or affiliates shall be deemed an action or breach by the user.

You understand that the technical processing and transmission of Electronic Communications is fundamentally necessary to use of the Services. You expressly consent to FillShift’s interception and storage of Electronic Communications and/or user data, and acknowledge and understand that Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by FillShift. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. FillShift is not responsible for any Electronic Communications and/or data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by FillShift, including, but not limited to, the Internet and your local network.

Subject to our Privacy Policy, any communication or material that you transmit to or via our Services, whether by electronic mail, text, post, or other means, for any reason, will be treated as non-confidential and non-proprietary. While you retain all rights in such communications or material, you agree you have the right and authority to, and hereby grant us and our agents a non-exclusive, paid-up, perpetual, irrevocable, sub-licensable and worldwide right and license to copy, distribute, display, perform, publish, translate, adapt, modify, make derivative works from, and otherwise use such material for any purpose regardless of the form or medium (now known or not currently known) in which it is used, and waive your moral rights in such material.  FillShift will decide, at its sole discretion, whether material submitted is suitable for use on the Services.

Disclaimer of Warranties

THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FILLSHIFT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICES PROVIDERS, AND EACH OF THEIR AND FILLSHIFT OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS, AND ASSIGNS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES OR SOFTWARE, INCLUDING,  WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, FILLSHIFT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR COMPLY WITH THE LAW OF YOUR JURISDICTION. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF FILLSHIFT, IN EVALUATING THE SERVICES OR SOFTWARE.

SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FILLSHIFT OR ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS, AND ASSIGNS, OR ANY OF ITS OR THEIR REPRESENTATIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR MISUSE OF, USE OF, DOWNLOAD OF, INSTALLATION OF, OR INABILITY TO USE THE SERVICES OR THE CONTENT FOR:

(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE, OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b) DIRECT DAMAGES IN AMOUNTS THAT TAKEN TOGETHER EXCEED THE TOTAL AMOUNT YOU ACTUALLY PAID FOR THE SERVICES, OR, IF AND ONLY IF SUCH LIMITATION IS UNENFORCEABLE UNDER APPLICABLE LAW, THE GREATEST OF (I) THE TOTAL AMOUNT YOU ACTUALLY PAID TO FILLSHIFT, (II) CAD $10.00, OR (III) THE LOWEST LIMIT TO DIRECT DAMAGES ALLOWABLE UNDER APPLICABLE LAW.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR FILLSHIFT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MANY NOT APPLY TO YOU. FILLSHIFT’S LIABILITY TO YOU IS LIMITED TO WHAT IS PERMITTED BY APPLICABLE LAW.

Indemnification

You agree to indemnify, defend and hold harmless FillShift and its offices, managers, members, employees, agents, representatives, affiliates, subsidiaries, parents, successors, and assigns from and against any and all losses, damages, liability, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including, without limitation, reasonable attorneys’ fees and expenses, arising from or relating to your (or anyone acting under your user account) use or misuse of the Services, your breach of this Agreement, your negligence, your misconduct, your violation of any rights of any third party, including, without limitation, other users of the Services, or your violation of any applicable law.  Furthermore, you agree that FillShift assumes no responsibility for the content you submit or make available through the Services or your compliance with applicable law. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which you will fully cooperate with us in asserting any available defenses.

FillShift Service Level, Security and Support

As part of the Services, FillShift will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Services. Customer acknowledges that FillShift has extensive experience helping Customers improve utilization and realization of benefits of the Services, and that not following the advice of FillShift and/or not engaging FillShift or other FillShift authorized implementation partners in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Services or to enjoy the power and potential of the Service.

FillShift shall maintain reasonable administrative, physical and technical safeguards to help to protect the confidentiality and integrity of to protect against loss, misuse or unauthorized access, disclosure, alteration or destruction of Personal Information collected in the course of providing Services.

The FillShift Services will meet the service level as agreed in writing between Customer and FillShift. If the applicable Service fails to achieve the service level, then Customer’s entitlements will be determined in accordance with the terms set forth in the service agreement. The respective Service’s system logs and other records shall be used for calculating any service level events.

Termination / Access Restriction

FillShift reserves the right, in its sole discretion, to terminate or suspend your access to all or part of the Services with or without notice and for any reason, including, without limitation, breach of these Terms of Use. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.

Upon termination or suspension, regardless of the reasons therefore, your right to use the Services will cease and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.

Governing Law and Jurisdiction

This Agreement is governed by and construed in accordance with the laws applicable in the Province of Ontario, Canada without giving effect to any choice or conflict of law provision or rule that would cause another jurisdiction’s law to apply. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services shall be instituted in the federal courts of Canada or the courts of the Province of Ontario, as appropriate. YOU AGREE THAT YOU WILL ONLY SUBMIT ANY CLAIM AGAINST FILLSHIFT RELATING TO THE SERVICES INDIVIDUALLY AND NOT THROUGH ANY CLASS ACTION.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Changes to Terms of Use

FillShift reserves the right, in its sole discretion, to change the Terms of Use under which the Services are offered.  The most current version of the Terms of Use will supersede all previous versions.  FillShift encourages you to periodically review the Terms of Use at www.fillshiftcanada.com/terms to stay informed of our updates.

Your continued use of the Services following any such change constitutes your agreement to follow and be bound by the updated or modified version of these Terms of Use.

Waiver and Severability

No failure to exercise and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other terms, the terms of this Agreement shall govern.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Contact Us

Notices given by FillShift to you will be given by email, by a general posting on the FillShift website or by conventional mail. Notices given by you to FillShift must be given by email or by conventional mail. Notices to FillShift by conventional mail must be sent to: FillShift Inc., PO Box 3006, Toronto, Ontario, CANADA M4J 0A0.

In any matter requiring FillShift’s prior consent, such consent will be considered given only if made in writing by an authorized representative of FillShift.