Terms of Use

Acceptance of the Terms of Use

These terms of use are entered into by and between the User and shiftNOW, Inc., a corporation organized under the laws of the State of South Carolina (“Company,” or “shiftNOW”). The following terms and conditions and any documents they expressly incorporate by reference (together, the “Terms of Use”) govern the User’s access to and use of www.shiftnow.com, including any content, functionality, and services offered on or through www.shiftnow.com or the associated mobile device “shiftNOW” application (collectively, the “Platform”), whether as a guest or a registered user.

Please read the Terms of Use carefully before starting to use the Platform. By using the Platform or by clicking to accept or agree to the Terms of Use when this option is made available, the User accepts and agrees to be bound and abide by these Terms of Use and our Privacy Policy, found at www.shiftnow.com/privacy, incorporated herein by reference. If the User does not want to agree to these Terms of Use or the Privacy Policy, the User must not access or use the Platform.

The Platform, including the services that the Company provides through and as a part of it, are offered and available ONLY to users who are (1) businesses that are qualified to do business in one or more of the states in which the Company operates ( “Eligible Businesses”), or (2) individuals who warrant that they are eighteen (18) years of age or older, who have the right, authority and capacity to enter into this agreement and to comply with all terms and conditions of its use, and who are authorized to work in the United States (such individuals being referred to herein as “Eligible Workers”). shiftNOW is not responsible for any misrepresentations related to the user’s age and reserves the right to terminate the account of any user whom it believes provided false information on the platform.  Eligible Businesses, after they are registered with the Company through the Platform, are referred to herein as “Clients;” Eligible Workers, after they are registered with the Company through the Platform (which registration requires acceptance by the Company in its sole discretion and which registration may be revoked at any time by the Company in its sole discretion for any or no reason), are referred to herein as “Shifters.” Collectively, Clients and Shifters are referred to as “Users.”

By using the Platform, the User represents and warrants that they meet all of the foregoing eligibility requirements to be an Eligible Business or an Eligible Worker. If the User does not meet all of these requirements, they must not access or use the Platform.

Compliance with Applicable Laws

In addition, by using the Platform, the User (whether a Shifter or a Client) agrees that, in using the Platform and by entering and performing any engagement enabled by the Platform, they will comply with all laws and regulations that may be applicable in the state in which such engagement is to be performed.

Changes to the Terms of Use

shiftNOW reserves the right and may revise and/or update these Terms of Use from time to time in its sole discretion. All changes are effective immediately when posted, and apply to all access to and use of the Platform thereafter. However, any changes to the dispute resolution provisions set out in “Governing Law and Jurisdiction” below will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Platform.

Continued use of the Platform following the posting of revised Terms of Use shall constitute acceptance and agreement to the changes. shiftNOW users are expected to check this page each time they access the Platform to remain aware of any changes, as they are binding on the User.  Unless material changes are made to the arbitration provisions herein, shiftNOW user agrees that modification of the Terms of Use does not alter the requirement to resolve disputes through Arbitration.

Notwithstanding the foregoing, the terms of time, location, pay rate, duties, attire, and any other term specified by a Client that does not contradict these Terms of Use in a listing of an engagement between a Client and a Shifter that is processed through the Platform constitute a separate and independent contract (a “Shift Engagement”) between that Client and that Shifter over which shiftNOW has no control and, once agreed to between them, those terms to that Shift Engagement are not affected by changes to the Platform.

shiftNOW Account Information and Activity

Shifter Contact Information

The User agrees that shiftNOW may communicate with them via email, text message, mobile number, telephone, or delivery services through the United States Postal Service regarding the User’s shiftNOW account and the services provided through our platform. The User acknowledges that it is their responsibility to keep shiftNOW updated on their current contact information. shiftNOW reserves the right to suspend any accounts with which we are unable to make contact. In the event the User’s account is suspended for this reason, they may file an appeal by emailing support@shiftnow.com.

Suspicious Account Activity

shiftNOW reserves the right to terminate the User’s use of our platform at any time if their account is engaging in fraudulent or suspicious activity. This includes but is not limited to, the use of stolen personal information, the creation of Shifter or Business accounts with malicious intent, or the creation of accounts associated with previously suspended users.

External Business Communications

A Shifter should only contact a Client about a Shift Engagement through the shiftNOW Platform. Shifters should not attempt to contact Clients regarding Shift Engagements through external communication. This includes calling, texting, emailing, or showing up to a business location without being accepted for a shift. Shifters who fail to comply may face suspended account access.

In the event a Shifter needs to contact a Client they’re scheduled to work a shift with, the shiftNOW Platform’s in-app calling and in-app messaging features can assist. In-app calling and messaging are available two hours before the start of a Shifter’s scheduled shift and one hour following the scheduled end time of a Shifter’s shift.

Nothing in this section is intended to limit a Shifter’s right to seek and engage in work through external opportunities. Shifters have the right to provide services of any kind to any party in their sole discretion, including work sought and engaged in outside of the shiftNOW platform. shiftNOW expects that Shifters actually provide services through other platforms or external opportunities and do not rely solely upon shiftNOW to provide their services in exchange for payment or benefit. 

Shift Engagements: Entering, Performance, and Payment

Any Shift Engagement is solely between a Client and a Shifter. The Company is not a party to the Shift Engagement and exercises no control over the terms and conditions, including but not limited to time, location, pay rate, duties, and attire, of any specific Shift Engagement.  shiftNOW provides a marketplace through its Platform where persons who seek temporary work as independent contractors can communicate with persons or entities seeking to staff positions with independent contractors on a temporary basis.  Any decision by a Client or Shifter to offer or accept an engagement is a decision made in the sole discretion of the Client or Shifter.  THE USER ACKNOWLEDGES THAT THEIR ABILITY TO ACCEPT ENGAGEMENTS THROUGH THE USE OF THE SHIFTNOW PLATFORM DOES NOT ESTABLISH SHIFTNOW AS A PROVIDER OF ENGAGEMENTS OR CREATE AN EMPLOYMENT RELATIONSHIP, PARTNERSHIP, OR JOINT VENTURE BETWEEN THE USER AND SHIFTNOW.  AS NOTED ABOVE, EACH OF THE ENGAGEMENTS ENTERED INTO BETWEEN A CLIENT AND A SHIFTER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN SUCH PERSONS OR ENTITIES.

The Company, through the Platform or through third-party vendors, provides:

(1) a website marketplace where (a) Clients who need independent contractors for shift work and (b) Shifters who desire to undertake shift work as independent contractors can be introduced to and communicate with each other regarding engagements, and

(2) certain functions related to contract execution, record-keeping, Shifter compensation payment, and tax reporting.

The Company makes no representations or warranties about the quality of work provided by a Shifter and does not employ or endorse Shifters. Neither does the Company make any representation or warranty as to the interactions or dealings between Users. 

Any Eligible Business that wishes to engage a Shifter as an independent contractor may become a Client by registering at app.shiftnow.com (also reachable through www.shiftnow.com). That registration includes establishing the necessary account and providing the necessary information to make payments and to receive informational reports through www.stripe.com (the “Stripe Payment Platform”), a third-party payment processing service that facilitates all transactions on the Platform. A Client shall enter and may, from time to time, modify the required information related to its then-current need for Shifters, its input on its experience with individual Shifters, and other available input fields at app.shiftnow.com.

Any Eligible Worker who wishes to accept shift work for a Client as an independent contractor may become a Shifter by registering through the Shifter mobile app, available through both iOS and Android app stores. That registration includes establishing the necessary account and providing the necessary information to receive payments and informational reports through the Stripe Payment Platform. A Shifter shall enter and may, from time to time, modify the required information related to his or her work experience, payment account information, contact information, and other available input fields at the Shifter mobile app.

The Company will verify that each person appearing as a Shifter is not a bot or other non-human device or digital impersonator. Otherwise, the Company will not attempt to verify, and is not responsible for the currency, completeness or accuracy of, any information input by either Clients or Shifters, including but not limited to eligibility to be a Client or Shifter or relevant experience. Each Client is responsible for any further verification of Shifter information that the Client wishes.

Information input by Clients with regard to their then-current needs and terms of offered Shift Engagements will be provided to Shifters through the Company’s proprietary software, which operates through and includes the Platform. That information may include time, location, hourly pay rate or pre-arranged amount, anticipated duties, and any other requirement (for example, attire) that the Client may post related to the offered Shift Engagement. Subject to the Terms of Use, shiftNOW has no control over or involvement in the terms and conditions the Client may post.  At no time is the Shifter under the direction or control of shiftNOW.  The shiftNOW Platform may allow, but will not require, Clients to prioritize Shifters to receive such notices.  The decision to prioritize Shifters is made solely by the Client.

A Shifter who wishes to accept an offered Shift Engagement will, through the shiftNOW Platform, apply for that Shift Engagement; and his or her application and input information regarding work experience and other Shifter input fields will, through the shiftNOW Platform, be provided to the Client.  Shifters set their own hours and terms of work by accepting shifts offered by the Clients, and may work as many or as few shifts as they desire.  Shifters are under no obligation to accept an offered Shift Engagement.  The decision to accept or decline a Shift Engagement is made solely by the Shifter.  Shifters may select Shift Engagements with one Client or with many Clients, and they may accept or decline offered compensation at their sole discretion.

If the Client, through the shiftNOW Platform, accepts the Shifter’s application for the Shift Engagement, the shiftNOW Platform notifies the Shifter, and the Shift Engagement is thereby entered. The Shifter has an obligation to appear for and perform the Shift Engagement and, if he or she does so, the Client has an obligation to release, to the Shifter, payment in accordance with the terms of the Shift Engagement and these Terms of Use.  Clients are under no obligation to accept a Shifter’s application for a Shift Engagement.  The decision to accept a Shifter’s application and enter into a Shift Engagement is made solely by the Client.  Clients may offer Shift Engagements to one Shifter or many Shifters at their sole discretion. shiftNOW makes no assurances or representations that a Shifter’s application will be accepted by a Client or to the number of Shift Engagements for which a Shifter will be accepted.

Clients may also opt to have the system automatically select, rather than the Client manually selecting, a Shifter for a specific Shift Engagement. Clients using the automatic selection feature may deselect the selected Shifter and select another Shifter up to 24 hours before the scheduled Shift Engagement begins. If, within 24 hours of a Shift Engagement, a Client cancels the Shift Engagement or rejects the Shifter who was automatically selected for the Shift Engagement, the Client will be charged for the Shift Engagement, and the Shifter will be paid, regardless of the Shifter not working the Shift Engagement.  

After the Shift Engagement is voluntarily entered by the Shifter and the Client, the Stripe Payment Platform will transfer from the Client’s payment source to the Stripe Payment Platform, the amount of the Client’s payment obligation, which is (a) the Client’s hourly pay rate times the number of hours for that Shift Engagement or fixed-fee/pre-arranged amount for the Shift Engagement being entered, (the “Gross Shifter Compensation”), plus (b) the amount separately disclosed by the Company to the Client and agreed to by the Client in connection with the Shift Engagement (the “Company Compensation”), plus (c) the amount of the Stripe Payment Platform compensation relevant to the Shift Engagement (the “Stripe Compensation”). Upon transfer from the Client’s payment source, the amount of the Gross Shifter Compensation and the Company Compensation will be credited to the account of the Company on the Stripe Payment Platform; and the Stripe Compensation will become the earned income and property of Stripe.

Reported Illegal Drug Use or Violent/Threatening Shifter Behavior Policy

If a Client reports to shiftNOW that a Shifter (1) used illegal drugs or other substances during a Shift Engagement, (2) was under the influence of illegal drugs or other substances during a Shift Engagement, (3) exhibited aggressive, threatening, or violent behavior towards a shiftNOW Client, employees at a Client location, or customers or third-parties at a Client location, or a Shifter exhibits such behavior toward shiftNOW employees, the Shifter will be indefinitely suspended effective immediately and sent an in-app notification. Absent mitigating circumstances, the Shifter’s account may be suspended permanently. 

Low Shifter Reliability % Policy

Every new Shifter on the shiftNOW Platform starts out with a 5-star rating and a 100% Shifter Reliability %. Clients will be given the opportunity to rate Shifters following Shift Engagements, which will affect a Shifter’s rating. shiftNOW does not rate or review Shifters’ work during Shift Engagements. The Shifter’s Reliability % indicates to businesses on the shiftNOW Platform how reliable a Shifter is as a shift worker. A Shifter’s Reliability % will decrease if a Shifter cancels a Shift Engagement, fails to show up for a confirmed Shift Engagement without canceling, or fails to confirm the Shift Engagement by the confirmation deadline.

In the event that a Shifter’s Reliability % drops below 60% after being accepted or confirmed to at least five shift engagements, the Shifter’s access to the shiftNOW Platform will be suspended indefinitely. shiftNOW will notify the Shifter of such account access suspension through an in-app notification.

In addition, all existing applications for Shift Engagements will be automatically withdrawn and all other confirmed Shift Engagements will be canceled. The Shifter may dispute any indefinite suspension by emailing support@shiftnow.com and providing a valid reason.

Shifter Failure to Confirm Shift Policy

Prior to a Shifter’s first confirmed Shift Engagement, the Shifter will be required to participate in a screening call to confirm the Shifter’s identity. If the Shifter fails to answer or respond prior to the Shift Engagement, the confirmed Shift Engagement will be cancelled. 

An accepted Shifter must confirm their Shift Engagement with the Client by a confirmation deadline. The shiftNOW Platform sends the Shifter a notification to confirm. Failure to confirm the Shift Engagement by the confirmation deadline results in a decrease in the Shifter’s Reliability % and a seven (7) day temporary, limited suspension of the Shifter’s access to the shiftNOW Platform.

Shifter Cancellation Policies

After the Client and Shifter enter into a Shift Engagement, either the Client or the Shifter can cancel the Shift Engagement by notice through the Shift Platform, which will automatically notify the other party.  If a Shifter cancels the Shift, it will impact the Shifter's Reliability %, which is a measure of how many shifts a Shifter has canceled versus completed.  The more shifts a Shifter completes, the higher the Reliability %, which the Client can consider in selecting a Shifter to fill a shift. If the Client cancels the shift, it will not affect the Shifter’s Reliability %.   

If the Shifter cancels a confirmed Shift Engagement with the Client more than 24 hours before the scheduled start time, their Shifter's Reliability % will not decrease.

If the Shifter cancels a confirmed Shift Engagement with the Client less than 24 hours but more than 6 hours before the scheduled start time, the Shifter's Reliability % will decrease.  A Shifter canceling a confirmed Shift Engagement with the Client less than 24 hours, but more than 6 hours results in a seven (7) day temporary, limited suspension of the Shifter’s access to the shiftNOW Platform.

If the Shifter cancels a confirmed Shift Engagement with the Client less than 6 hours before the scheduled start time, the Shifter's Reliability % will decrease.  A Shifter canceling a confirmed Shift Engagement with the Client less than 6 hours before the scheduled start time results in a fourteen (14) day temporary, limited suspension of the Shifter’s access to the shiftNOW Platform.  In addition to the fourteen-day temporary, limited suspension of access to the shiftNOW Platform, all existing applications for Shift Engagements are automatically withdrawn and all other confirmed Shift Engagements are canceled, subject to the Shift Dispute Process. Beginning with the second time a Shifter cancels a confirmed Shift Engagement with a Client less than 6 hours before the scheduled start time, the Shifter may also be charged a cancellation fee. 

Canceling After Shift Start and No-Show Policies

If the Shifter cancels a confirmed Shift Engagement with the Client after the scheduled start time, or fails to show up for a confirmed Shift Engagement without canceling, the Shifter's Reliability % will decrease.

The first offense of a Shifter canceling after the scheduled start time, or failure to show up for a confirmed Shift Engagement without canceling results in a thirty (30) day temporary, limited suspension of the Shifter’s access to the shiftNOW Platform. 

In addition to the thirty-day temporary, limited suspension of access to the shiftNOW Platform, all existing applications for Shift Engagements are automatically withdrawn and all other confirmed Shift Engagements are canceled.

The second offense of a Shifter canceling after the scheduled start time, or failure to show up for a confirmed Shift Engagement without canceling results in an indefinite suspension of the Shifter’s access to the shiftNOW Platform. In addition to the indefinite suspension of access to the shiftNOW Platform, all existing applications for Shift Engagements are automatically withdrawn and all other confirmed Shift Engagements are canceled. To appeal reach out to support@shiftnow.com .

1st Shift Late-Cancel and No-Show Policies

If the Shifter cancels a confirmed Shift Engagement with the Client after the scheduled start time, or fails to show up for a confirmed Shift Engagement without canceling on their first Shift Engagement, the Shifter's Reliability % will decrease.

A Shifter canceling after the scheduled start time, or failing to show up for a confirmed Shift Engagement without canceling on their first results in an indefinite suspension of the Shifter’s access to the shiftNOW Platform, and they will remain suspended until they appeal to support@shiftnow.com .

Client Shift Cancellation Policy

If the Client cancels a Shift Engagement less than 24 hours before the Shift Engagement begins, the Shifter will be entitled to payment by the Client for the scheduled Shift Engagement. This payment will be for the shift's duration up to a maximum of four hours at the hourly rate advertised in the shift posting.

Payment Platform

All payments with respect to Shift Engagements will be made and received through the Stripe Payment Platform; and the Company will not have access to sending or receiving financial account information or Social Security or tax identification number information of either the Client or the Shifter. All such information will be held solely by the Stripe Payment Platform in accordance with its own terms of use (https://stripe.com/legal/ssa and https://stripe.com/legal/spc) and privacy policy (https://stripe.com/privacy and https://stripe.com/legal/cookies-policy and https://support.stripe.com/questions/what-data-does-stripe-access-from-my-linked-financial-account), as they may be updated from time to time.

The Company and the Stripe Payment Platform are not affiliated in any way, and the Company does not control or enforce, and is not responsible for, either the contents of those terms and that policy or compliance with and adherence to them.

BY ENTERING INTO A SHIFT ENGAGEMENT THROUGH THE PLATFORM, THE USER AFFIRMS THAT THEY ARE OF LEGAL AGE AND/OR AUTHORIZED TO PERFORM WORK IN THE UNITED STATES, AND THE USER ACCEPTS AND ARE BOUND BY THESE TERMS AND CONDITIONS WITH REGARD TO THE USE OF THE PLATFORM FOR THAT PURPOSE.

A Client or Shifter may access records of pending or completed Shift Engagements through the Stripe Payment Platform in accordance with the Stripe Payment Platform’s data retention policy. See https://support.stripe.com/questions/data-retention-policy and https://support.stripe.com/questions/stripe-event-retention-period.

Clients Payout Shifters

Upon the Shift Engagement’s scheduled end time, the Client will be able, through the shiftNOW Platform, to approve payment to the Shifter. Upon the Client’s approval, the payment will be effected by the Stripe Payment Platform in the manner described below. shiftNOW will initiate auto-payout for any shifts that have not been paid after 48 hours of completion. Although shiftNOW may facilitate payment between Clients and Shifters through the Stripe Payment Platform, all transactions are between Clients and Shifters. 

Shifter Referral Program

A Shifter may refer a friend to the shiftNOW Platform as a Shifter.  To refer someone, the referring Shifter’s account must not be currently suspended. A Shifter may refer a friend within the mobile app by clicking the “Refer a Friend” item on the Shifter profile.  The shiftNOW Platform generates a unique referral code . The referring Shifter may copy the referral code and share directly with a friend.  The referring Shifter may share a single referral code with multiple people.  A referral code will remain active indefinitely unless de-activated by shiftNOW.

All referrals are intended for new Shifters.  When a referring Shifter refers a friend, the friend’s account creation date must be after the date on which the referral code was generated.  All referred Shifters must be Eligible Workers and cannot be existing Shifters.  A Client employee is ineligible to be referred.

In order to receive the referral fee, the referred friend must complete the following steps:

• Download the shiftNOW mobile app
• Create their Shifter account
• Complete their Shifter profile
• Become a verified Shifter
• Complete at least one shift through shiftNOW
• Remain in good standing for 24 hours after the completion of their first shift

Before either party can receive payment, the referred Shifter’s account must remain in good standing for 24 hours after completing their first shift. If the referred Shifter’s account gets, neither party will be paid the referral fee.

The shiftNOW referral fee is $20 per referral. Referred and referring Shifters are each paid $20 following the completion of the referred Shifter's first shift, contingent upon the above criteria being met. Payment of the referral fee does not in any way alter a Shifter’s status as an independent contractor and does not create an employment relationship between a Shifter and the Company. 

Occupational Accident Insurance Coverage

When payment is to be effected, the amount of the Gross Shifter Amount (minus an amount to cover the cost of Occupational Accident Insurance coverage for the Shift Engagement (the “OAI Amount”, described below) will be transferred by the Stripe Payment Platform from the Company’s Stripe Payment Platform account to the account for receipt of payments that the Shifter has designated to the Stripe Payment Platform in the manner and according to the schedule established by the Stripe Payment Platform for processing payments; and the amount of the Company Compensation plus the OAI Amount will be transferred by the Stripe Payment Platform to the account for receipt of payments that the Company has designated to the Stripe Payment Platform, also in the manner and according to the schedule established by the Stripe Payment Platform for processing payments.

By using the shiftNOW Platform, the Shifter authorizes shiftNOW to deduct the OAI Amount from their Gross Shifter Amount paid by the client to cover the cost of premiums for Occupational Accident Insurance coverage (“OAI Coverage”) for the Shift Engagement.  The OAI Amount will be a dollar amount (set and re-set from time to time) per hour for each hour of the Shift Engagement; and that dollar amount will be communicated to Shifters from time to time through the shiftNOW Platform.  OAI Coverage is mandatory for each Shift Engagement.

The Shifter is Responsible for Any Tax Obligations

The only amount withheld from any payment to a Shifter will be the OAI Amount. No amount will be withheld from payments to the Shifter for any tax or other legal obligation. All such tax payment and compliance obligations are the responsibility solely of the Shifter, including but not limited to state worker’s compensation insurance coverage requirements, US immigration requirements, and local, state, and federal wage hour requirements.  Shifters acknowledge and agree that shiftNOW does not provide or make deductions for Social Security, unemployment insurance, disability insurance, or any other benefits, statutory or otherwise. The Shifter is also responsible for providing all W-9 information.  On a periodic basis as may be required by the Internal Revenue Service (“IRS”), the Stripe Payment Platform will provide to the Shifter and to the IRS and to the Company the appropriate IRS 1099 Forms showing the amount of the Gross Shifter Compensation (including the OAI Amount) for the Shifter in the relevant period.  Notwithstanding that, it is the responsibility of the Shifter to file all relevant tax forms.

Payout of Tips Following Shift Engagements

Following a Shift Engagement, Clients may elect to tip Shifters by way of a direct cash payout or through the Stripe Payment Platform via the shiftNOW platform. Shifters are free to accept tips associated with Shift Engagements, are required to report these tips to the IRS and/or state taxing authority and are solely responsible for any associated tax obligations. Tips paid to a Shifter through the Stripe Payment Platform will be reflected on the Shifter’s IRS 1099 Form.

‍Shift Dispute Process

When a Shifter completes a Shift Engagement, there are times when the payout may not accurately reflect the number of hours the Shifter completed. This could be due to a Shifter running late, getting marked as a no-show, or being asked to stay later than the designated shift end time.

To better facilitate a more accurate and streamlined payout process, we have added the ability for a Shifter to dispute their shift payout through the Platform at the time of payout notification.

The Shifter will only have the ability to dispute any discrepancies within 72 hours of either:

• Being paid for the Shift Engagement 
• Being marked as a no-show by the Client

Independent Contractor Status

Clients, Shifters, and the Company each and all agree that a Shifter is an independent contractor and not an agent or employee of the Company or of any Client. Nothing in these Terms of Use nor any acts of any Client, any Shifter, or the Company will be deemed or construed by any of them to create the relationship of principal and agent, employer and employee, or a partnership or joint venture, between or among any of them.  Shifters have no authority to hold themselves out as an employee, agent or representative of shiftNOW.  Neither the Company nor the Client directs or controls any choice of any Shifter to apply to perform work as an independent contractor for any Client, and no joint employment relationship, partnership or other relationship is created through any Client’s or Shifter’s use of the Platform or by any Client and Shifter entering into any Shift Engagement.  

Shifters are solely responsible for the Shifter’s own Shift Engagements. Any Shift Engagement entered into by a Shifter will not be supervised, evaluated, or controlled by shiftNOW; constitutes work that is outside the usual course of shiftNOW’s business; and requires the special expertise and skill of the Shifter within the Shifter’s trade, occupation, and/or business. Shifters are solely responsible for the Shifter’s own expenses and shall supply their own tools and equipment as necessary. shiftNOW will not reimburse Shifters for any expenses or costs incurred by a Shifter to complete a Shift Engagement.

Shifters are not limited to performing services through the shiftNOW Platform.  Shifters are free to contract for work with third parties and/or utilize other platforms. Shifters use the shiftNOW Platform at their sole discretion and may discontinue use of the shiftNOW Platform at any time.

Shifter represents that he or she possesses all required licenses, certifications, approvals and authority necessary to perform work as an independent contractor for any Client with whom he or she enters a Shift Engagement. Shifters are solely responsible for complying with all applicable local, state, and federal laws, regulations, and rules in completing Shift Engagements.

Clients and Shifters expressly acknowledge and agree that the Company does not maintain worker’s compensation insurance to cover occupational injuries suffered during work performed by Shifters for Clients. Shifters and/or Clients are solely responsible for procuring any disability or other insurance desired beyond the OAI Coverage. shiftNOW does not provide any training to Shifters whatsoever.

Accessing the Platform and Account Security

Company reserves the right to withdraw or amend the Platform, and any service or material it provides on the Platform, in its sole discretion without notice; provided, however, that any such service provided for the performance of Shift Engagement will not be withdrawn or amended with respect to that Shift Engagement without not less than ten (10) business days’ notice to the Client and the Shifter of that withdrawal or amendment. Company will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, Company may restrict access to some parts of the Platform, or the entire Platform, to Clients and Shifters.

The User is responsible for both:

• Making all arrangements necessary for the User to have access to the Platform.
• Ensuring that all persons who access the Platform through the User’s internet connection and/or through their registration or log-in credentials, are aware of these Terms of Use and comply with them.

To access the Platform or some of the resources it offers, the User may be asked to provide certain registration details or other information. It is a condition of the User’s use of the Platform that all the information provided on the Platform is correct, current, and complete. The User agrees that all information provided to register with the Platform or otherwise, including, but not limited to, through the use of any interactive features on the Platform, is governed by our Privacy Policy (www.shiftnow.com/privacy), and the User consents to all actions the Company takes with respect to their information consistent with our Privacy Policy.

If the User chooses, or is provided with, a username, password, or any other piece of information as part of our security procedures, the User must treat such information as confidential, and must not disclose it to any other person or entity. The User also acknowledges that their account is personal to them and agrees not to provide any other person with access to the Platform or portions of it using their username, password, or other security information. The User agrees to notify shiftNOW immediately of any unauthorized access to or use of their username or password or any other breach of security. The User also agrees to ensure that they exit from their account at the end of each session. The User is encouraged to use particular caution when accessing their account from a public or shared computer so that others are not able to view or record their password or other personal information.

Company has the right to disable any username, password, or other identifier, whether chosen by the User or provided by it, at any time in its sole discretion for any or no reason, including if, in the Company’s opinion, the User has violated any provision of these Terms of Use. In the event that the Company disables the User’s access to the Platform, it will, by notice, provide alternate means by which the User can retrieve information related to ongoing Shift Engagements or to Shift Engagements that have been completed within the preceding 24 months.

Intellectual Property Rights

The Platform and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit the User to use the Platform for personal or business use only. Any such business use must not include brokering or re-selling the services that we provide through the Platform or otherwise using the functionality of the Platform to provide similar services, in the manner of a service bureau or otherwise. The User must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Platform, except as follows:

• The User’s computer may temporarily store copies of such materials in RAM incidental to accessing and viewing those materials.
• The User may store files that are automatically cached by their Web browser for display enhancement purposes.
• The User may print or download copies of records related to Shift Engagements to which they are a party, including but not limited to the terms of the Shift Engagement, records of performance and payment, and records of tax-reporting.
• If we provide desktop, mobile, or other applications for download, the User may download a single copy to their computer or mobile device solely for their own personal or business use as described above, provided they agree to be bound by our end user license agreement for such applications.

The User must not:

• Modify copies of any materials from this site.
• Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

The User must not access or use for any commercial purposes, other than the entering into and performing of Shift Engagements to which they are a party, any part of the Platform or any services or materials available through the Platform.

If the User prints, copies, modifies, downloads, or otherwise uses or provides to any other person with access to any part of the Platform in breach of the Terms of Use, their right to use the Platform will stop immediately and must, at our option, return or destroy any copies of the materials which have made. No right, title, or interest in or to the Platform or any content on the Platform is transferred to the User, and all rights not expressly granted are reserved by the Company. Any use of the Platform not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

Trademarks: The User’s and Ours

The Company name and the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors and must not be used without the prior written permission of the Company.

All other names, logos, product and service names, designs, and slogans on the Platform, including but not limited to those related to Stripe, Inc., and the Stripe Payment Platform, are the trademarks of their respective owners. Use of the shiftNOW Platform by a Client constitutes permission by that Client to the Company to identify that Client as a Client on both the www.shiftnow.com website and the associated mobile device “shiftNOW” application. Display by a Client of its logo or trademark in connection with its postings for a Shift Engagement on the shiftNOW Platform constitutes permission by that Client to the Company to display that trademark or logo on both the www.shiftnow.com website and the associated mobile device “shiftNOW” application in connection with the Company’s identification of that Client as a Client. From time to time, the Company may request testimonials from Clients for use on the www.shiftnow.com website and, after receiving such testimonials and approval by the Client for its use, may display such testimonials on the www.shiftnow.com website.

Prohibited Uses

The User may use the Platform only for lawful purposes and in accordance with these Terms of Use. The shiftNOW Platform is for the use of Shifters and Clients only and cannot be used in connection with any separate commercial enterprises or activities without the express written consent of the Company. It is to be used exclusively for Clients to find Shifters to complete Shift Engagements and Shifters offering to complete Shift Engagements for Clients. The shiftNOW Platform may not be used by any person or organization to recruit for another website or service or to solicit, advertise, or contact others for employment, contracting, or any other purpose for a business that is not a shiftNOW Client. Users agree not to use User Content in order to contact, advertise, solicit, ,or sell to others without their express consent. 

The User agrees not to use the Platform:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). In particular, the User may not use the Platform to enter Shift Engagements the performance of which would be unlawful in the jurisdiction where it is to be performed.
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms of Use.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm the Company or users of the Platform, or expose them to liability.

Additionally, the User agrees not to:

• Use the Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform.
• Use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform.
• Use any manual process to monitor or copy any of the material on the Platform, or for any other purpose not expressly authorized in these Terms of Use.
• Use any device, software, or routine that interferes with the proper working of the Platform.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer, or database connected to the Platform.
• Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
• Attempt to learn the existence of, terms of, or parties to any Shift Engagement to which the User is not a party.
• Otherwise attempt to interfere with the proper working of the Platform.

Users further agree not to collect User Content or any other information, materials, or content obtained through the shiftNOW Platform, including without limitation, names, phone numbers, email addresses, profiles, copyrighted text, or job listings, or otherwise misuse or misappropriate information, materials, or content, or any information obtained through the use of the shiftNOW Platform, using manual or automated means, including through web scraping. 

Clients are required to comply with all federal, state, and local laws with respect to Shift Engagements and are solely responsible for ensuring that Shifters are not subject to discrimination, harassment, or retaliation on the basis of any characteristic protected by federal, state, or local laws.

User Contributions

The Platform may contain or transmit materials posted by a Client or Shifter that may include but is not limited to Shift Engagement offerings, review features, and personal profiles (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Platform.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution the User posts to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Platform, the User grants us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose/according to the User’s account settings.

The User represents and warrants that:

• The User owns or controls all rights in and to the User Contributions and has the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
• All of the User’s User Contributions do and will comply with these Terms of Use.

The User understands and acknowledges that they are responsible for any User Contributions they submit or contribute, and the User, not the Company, has full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by the User, or any other user of the Platform.

Monitoring and Enforcement; Termination

We have the right to:

• Remove or refuse to post any User Contributions that do not comply with these Terms of Use, including the Content Standards.
• Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Platform or the public, or could create liability for the Company.
• Disclose the User’s identity or other information about them to any third party who claims that material posted by the User violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform.
• Terminate or suspend the User’s access to all or part of the Platform for any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through, or providing information to us through, the Platform. THE USER WAIVES AND HOLDS HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY OR ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY, ANY SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.

shiftNOW does not, however, undertake to review all material before it is posted on the Platform or distributed to Clients or Shifters in connection with the services offered through the Platform, and cannot ensure prompt removal of objectionable material after it has been posted or distributed. Accordingly, shiftNOW assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. shiftNOW has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable as determined by shiftNOW.
• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other protected class.
• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy www.shiftnow.com/privacy.
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote, or assist any unlawful act.
• Act in a manner that would cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
• Impersonate any person, or misrepresent the User’s own identity or affiliation with any person or organization.
• Involve contests, sweepstakes, and other sales promotions, barter, or advertising.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Infringement

If the User believes that any User Contributions violate their copyright, they can send us a notice of copyright infringement via email at support@shiftnow.com, and include “COPYRIGHT INFRINGEMENT NOTICE” in the subject line. It is the policy of the Company to terminate the user accounts of repeat infringers.

Reliance on Information Posted

The information presented on or through the Platform is made available solely for general information purposes. shiftNOW does not warrant the accuracy, completeness, or usefulness of this information. Any reliance the User places on such information is strictly at their own risk. shiftNOW disclaims all liability and responsibility arising from any reliance placed on such materials by the User or any other visitor to the Platform, or by anyone who may be informed of any of its contents.

The Platform and communications made as part of the services offered through the Platform includes content provided by third parties, including Clients and Shifters. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company about itself and its services, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company; and the Company does not verify their accuracy or completeness. We are not responsible, or liable to the User or any third party, for the content or accuracy of any materials provided by any third parties.

Changes to the Platform

shiftNOW may update the content on the Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.

Information About the User and Their Visits to the Platform

All information collected on the Platform is subject to shiftNOW’s Privacy Policy www.shiftnow.com/privacy. By using the Platform, the User consents to all actions taken by shiftNOW with respect to their information in compliance with the Privacy Policy.

Linking to the Platform and Social Media Features

Users may link to shiftNOW’s homepage, provided a User does so in a way that is fair and legal and does not damage shiftNOW’s reputation or take advantage of it. Users must not establish a link in such a way as to suggest any form of association, approval, or endorsement on the Company’s part without the Company’s express written consent; that suggests the User and the Company are engaged in a joint venture, partnership, or agency; that suggests the User is authorized to act on behalf of or bind the Company in any way; or that suggests the User is authorized to assume or undertake any obligation of any kind, express or implied, or make any promise, warranty, or representation on behalf of the Company or with respect to the services the Company provides or the Company’s business.  

The User must not, however, establish a link from any website that is not owned by them or link to any part of the Platform other than the homepage

Links from the Platform

If the Platform contains links to other sites and resources provided by third parties, these links are provided for the User’s convenience only. shiftNOW has no control over the contents of those sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from the User’s use of them. If the User decides to access any of the third-party websites linked to the Platform, they do so entirely at their own risk and subject to the terms and conditions of use for such websites.

Geographic Restrictions

The owner of the Platform is based in the State of South Carolina in the United States. The Company provides the Platform for use only by persons located in the States in which the Company currently operates. The Company makes no claims that the Platform or any of its content is accessible or appropriate outside of those States. Access to the Platform may not be legal by certain persons or in jurisdictions other than the States in which the Company operates. If the User accesses the Platform from outside a State in which the Company operates, they do so on their own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

The User understands that shiftNOW cannot and does not guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses or other destructive code. The User is responsible for implementing sufficient procedures and checkpoints to satisfy their particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, SHIFTNOW WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT THE USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO THE USER’S USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO THE USER’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY PLATFORM LINKED TO IT.

THE USER’S USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT THEIR OWN RISK. THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET THE USER’S NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USER’S USE, OR INABILITY TO USE, THE PLATFORM, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE PLATFORM OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

THE COMPANY WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN SHIFTERS AND CLIENTS. RESPONSIBILITY FOR THE DECISIONS SHIFTERS AND CLIENTS MAKE REGARDING SHIFT ENGAGEMENTS (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH THE SHIFTER AND CLIENT.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

The User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, taxes, penalties, interest, or fees (including reasonable attorneys’ fees) arising out of or relating to any Shift Engagement to which the User is a party, their violation of these Terms of Use or use of the Platform, including, but not limited to, User Contributions, any use of the Platform’s content, services, and products other than as expressly authorized in these Terms of Use, or use of any information obtained from the Platform.

Governing Law

All matters relating to the Platform and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of South Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of South Carolina or any other jurisdiction), except that the interpretation and enforcement of the provisions set forth under “Arbitration” below shall be governed by and construed in accordance with the Federal Arbitration Act, or if the Federal Arbitration Act does not apply, the state law in the state where the Shift Engagement is located.

Arbitration

THE USER AND THE COMPANY AGREE THAT ALL CLAIMS, DISPUTES, OR CONTROVERSIES EITHER (1) ARISING FROM OR RELATED TO THESE TERMS OF USE OR THE USER’S USE OF THE PLATFORM (INCLUDING BUT NOT LIMITED TO DISPUTES ARISING FROM OR CONCERNING THEIR INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN THE USER AND THE COMPANY AND/OR ALL OF THE COMPANY’S OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, OR (2) ARISING FROM OR RELATED TO ANY SHIFT ENGAGEMENT BETWEEN THE USER AND A CLIENT OR THE COMPANY WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION IN THE CITY OF CHARLESTON, SOUTH CAROLINA, BY A SINGLE ARBITRATOR.

THE USER AND THE COMPANY EACH HEREBY WAIVE ANY RIGHT TO BRING ANY SUCH CLAIM OR DISPUTE IN ANY COURT OF LAW OR EQUITY AND WAIVE ANY RIGHT OF TRIAL BY JURY THEREFOR AND THE USER WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT THE USER WOULD HAVE IF THEY WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

THE DUTY TO ARBITRATE UNDER THIS PROVISION IS MUTUAL, AND THE USER’S DECISION TO USE THE PLATFORM MEANS THAT THE USER AND THE COMPANY HAVE AGREED TO AND ARE BOUND BY THIS ARBITRATION PROVISION.

1. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs), and in other cases where the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply.
2. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. The arbitrator may award reasonable fees to either party under the standards for fee shifting provided by law. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the authority of a trial court judge sitting without a jury, but may not add to, modify, invalidate, or ignore any provision of this section or the AAA Rules, nor may the arbitrator invoke any basis for a ruling other than controlling law. The arbitrator shall have no power under this section to consolidate claims and/or to hear a collective or class action. 
3. The arbitrator shall follow controlling law and issue a decision in writing within 45 days of the arbitration hearing and issue a supporting opinion based on applicable law. The arbitrator’s decision and supporting opinion may be appealed within 90 days of issuance of the decision. If the decision and supporting opinion are not appealed, then the decision is final, binding, and conclusive on the parties and may be entered in any court of competent jurisdiction. At either party’s election, the decision and supporting opinion may be appealed to another arbitrator (“Appellate Arbitrator”), who shall be chosen in the same manner as the arbitrator. The Appellate Arbitrator shall apply to the underlying decision and opinion the same standard for review of civil cases as an appellate court in the relevant jurisdiction and issue a decision in writing with a supporting opinion based on such review and applicable law. The Appellate Arbitrator’s decision shall be final, binding and conclusive on the parties and may be entered in any court of competent jurisdiction.  For purposes of moving to vacate or confirm the arbitrator’s decision under the FAA or state law, the parties agree that any decision issued by the arbitrator will not become final until either the 91st day after the issuance of the decision or, if appealed to the Appellate Arbitrator, upon issuance of the Appellate Arbitrator’s decision.  Any further action to enforce or vacate an award from an Arbitrator or Appellate Arbitrator shall be governed by the Federal Arbitration Act.
4. THE USER AGREES TO AN ARBITRATION ON AN INDIVIDUAL BASIS. IN ANY DISPUTE, NEITHER THE USER NOR THE COMPANY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. NEITHER THE AMERICAN ARBITRATION ASSOCIATION NOR THE ARBITRATOR MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
5. The User has the right to consult with an attorney of their choice, at their own expense, with respect to any aspect of, or any claim that may be subject to, this Arbitration Provision.
6. The Company and the User agree that if either pursues a claim against the other by any method other than the arbitration provision herein, and an exception does not apply, the party filing such lawsuit will immediately request the court to dismiss or stay such action.  Should the filing party refuse to seek a dismissal or stay, the other party is entitled to the recovery of all damages in responding to the lawsuit and successfully obtaining a dismissal or stay, to include related attorneys’ fees, costs, and losses. Requests for these fees, costs, and losses shall be considered by the court, rather than an arbitrator.
7. The User has the right to opt out of the obligation set forth in this arbitration provision to submit to binding arbitration.  To opt out, the User must send via electronic mail or certified mail/return receipt requested an email/letter addressed to [insert Company contact] at [insert physical address], stating that the User has elected to opt out of the arbitration provision. The User understands that to be effective the email/letter must clearly state the User’s name, be signed by the User, and be received by the Company contact no later than thirty (30) calendar days after the User begins using the Platform.  Absent the proper exercise and timely receipt of this opt-out right, the User understands that the User will be required to arbitrate all disputes covered by this arbitration provision.

Limitation on Time to File Claims

Any cause of action or claim that either the user or the company may have arising out of or relating to these Terms of Use or the Platform must be commenced within the time period allowed pursuant to the statute, regulation, or other law applicable to the alleged act or omission giving rise to the claim, unless otherwise agreed in writing. Any claim not submitted to the AAA and the opposing party as a written request within the applicable time period is waived. 

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

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.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between the User and shiftNOW, Inc. regarding the Platform and the services offered through or in connection with the Platform and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Platform.

User's Comments and Concerns

The Platform is established, operated and maintained by shiftNOW, Inc., 635 Rutledge Avenue, Suite 102, Charleston, South Carolina 29403.All feedback, comments, requests for technical support, and other communications relating to the Platform (other than copyright infringement notices described above) should be directed to: support@shiftnow.com.