ACCEPTABLE USE POLICY
1.0 Welcome to SHIFT
This User Agreement describes the terms and conditions which you accept by using our Website or our Services.
1.1 In this User Agreement:
"Account" means the account associated with your email address.
"Website" means the Websites operated by Global Guardian Services Pty Ltd ATF TWH Business Services and available at: www.shift.ooo and any of its regional or other domains or properties, and any related SHIFT service, tool or application, specifically including mobile web, any iOS App and any Android App, or API or other access mechanism.
You are contracting with Global Guardian Services Pty Ltd ATF – Suite 2, 44 Gordon Street, Mackay QLD 4740, Australia. The operator, website, and it's services are collectively referred to as "SHIFT," "Platform", "we," or "us" and other similar terms, shall refer to the party with whom you are contracting.
Before using the Website, you must read the whole User Agreement, the Website policies and all linked information.
You must read and accept all of the terms in, and linked to, this User Agreement, the Code of Conduct, the SHIFT Privacy Policy and all Website policies. By accepting this User Agreement as you access our Website, you agree that this User Agreement will apply whenever you use the Website, or when you use the tools we make available to interact with the Website. Some Websites may have additional or other terms that we provide to you when you use those services.
By accessing the Website, you agree to the following terms with SHIFT.
We may amend parts of these Terms of Service at any time and any linked information from time to time by posting amended terms on the Website, without notice to you.
Your continued use of the Services after the date of any such changes constitutes your acceptance of the new Terms of Service. If you do not wish to accept the new Terms of Service, you may discontinue your use of the Services.
We may, from time to time, and without notice, change or add to the Website or the information, products or services described in it. However, we do not undertake to keep the Website updated. We are not liable to you or anyone else if any error occurs in the information on the Website or if that information is not current.
The Website is an online venue where Users buy and sell Seller services and items. Buyers and Sellers must register for an Account in order to buy or sell Seller Services and/or items. The Website enables Users to work together online to buy and sell items, create and contribute to Campaigns, create Events and sell tickets online and onsite, complete and pay for Projects and to use other services that we provide. We are not a party to any contractual agreements between User's in the online venue, we merely facilitate connections between the parties.
The Services are platforms; We are not a Broker, Financial Institution, Creditor, Trader, Organizer or Charity: The Services are administrative platforms only. SHIFT facilitates the Buyer and Seller, Events and ticketing of the Event Organizer, Campaigns of the Campaign Organisers and permits Donors to make donations to these Campaign Organisers. SHIFT is not a broker, agent, financial institution, creditor or 501(c)(3) non-profit corporation.
All information and content provided by SHIFT relating to the Services is for information purposes only and SHIFT does not guarantee the accuracy, completeness, timeliness or reliability of any such information or content. No content is intended to serve as financial, legal, tax or other professional advice. Before making any decisions regarding any transactional activity or any information or content relating to the Services, you should consult your financial, legal, tax or other professional advisor as appropriate. You acknowledge that all information and content accessed by you using the Services is at your own risk.
SHIFT has no control over the conduct of, or any information provided by, a User and hereby disclaims all liability in this regard to the fullest extent permitted by applicable law.
All free user accounts are associated with individuals. Login credentials should not be shared by users with others. The individual associated with the account will be held responsible for all actions taken by the account, without limitation.
Subject to your local laws, a person over the age of 15 years can use an adult's account with the permission of the account holder. However, the account holder is responsible for all actions taken by the account, without limitation.
Your Registration Obligations: You may be required to register with SHIFT in order to access and use certain features of the Services. If you choose to register for the Services, you agree to provide and maintain true, accurate, current and complete information about yourself, or your business including as prompted by the Platforms registration forms for user accounts, groups and their admins, event and campaign organisers, using their true identities (or the identities of the Charities' authorised representatives), including their name, address and any image or video purporting to depict the User, Officer, Organiser, Admin, or Owner of such . You agree to keep registration details current and up-to-date.
Users may register additional profiles such as a business name, property name, company name, or other legal entity name which is associated with the User's Account. These profiles can be used to post content or enter into transactions. Users acknowledge and agree that where a business name or other entity name is associated with their individual account, this User Agreement and the Terms of Service contained herewith, is a contract with the User as an individual (not the business or other entity) and Users remain solely responsible for all activity undertaken in respect of other profiles attached to their individual user account.
We may, at our absolute discretion, refuse to register any person or entity as a User.
You cannot transfer or assign any rights or obligations you have under this agreement without prior written consent.
People come to SHIFT to trade, share their stories, see the world through the eyes of others, and connect with other producers, consumers, businesses, causes and stakeholders of the agricultural industry. The conversations that happen on SHIFT reflect the diversity of a community of people communicating across countries and cultures and in dozens of languages posting in a variety of formats.
We recognize how important it is for SHIFT to be a place where people feel empowered to communicate, and we take our role in keeping abuse off our service seriously. Our standards apply around the world to all types of content.
The goal of our community standards is to encourage expression and create a safe environment. Our policies are also rooted in the following principles:
Safety: People need to feel safe in order to build community. We are committed to removing content that encourages real-world harm, including (but not limited to) physical, financial, and emotional injury.
Voice: Our approach is all about embracing diverse views. We err on the side of allowing content, even when some find it objectionable, unless removing that content can prevent a specific harm.
Equity: Our community is global and diverse. Our policies transcend regions, cultures, and languages. In some cases, when we are provided with additional context, we make a decision based on the spirit, rather than the letter, of the policy.
Everyone using SHIFT plays a part in keeping the platform safe and respectful. We ask people to share responsibly and to let us know when they see something that may violate our community standards. We make it easy for people to report potentially violating content, including pages, groups, profiles, individual content, and/or comments to us for review. We also give people the option to block, unfollow, or hide people and posts, so that they can control their own experience.
The consequences for violating our community standards vary depending on the severity of the violation and a person's history on the platform. For instance, we may warn someone for a first violation, but if they continue to violate our policies, we may disable their profile. We also may notify law enforcement when we believe there is a genuine risk of physical harm or a direct threat to public safety.
2.0 Commerce & User policies
2.1 Marketplace
SHIFT is a marketplace that allows users to offer, sell and buy a range of general goods and services in a variety of selling formats and locations. The actual contract for sale is directly between the seller and buyer. SHIFT is not a traditional auctioneer. It does not take ownership of any items or goods at any time and does not transfer legal ownership from the Seller to the Buyer.
Any guidance we provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, SHIFT has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
The information displayed in the SHIFT website, is not intended to constitute advice or the making of any recommendation or representation of whatever nature. You should not act or refrain to act on the basis of any of the information in the SHIFT website without first satisfying yourself as to the truth or accuracy of all information given. You should take your own independent legal advice.
You accept that there are risks when trading online and using the SHIFT Platform, including dealing with fraudulent persons. You will not hold SHIFT responsible for the information, content or acts, errors, omissions, fault or negligence of any third party.
2.2 Using SHIFT
In connection with using or accessing the Services you will not:
Making sure buyers receive great service from all our sellers is one of our top priorities. We will monitor and review seller reviews and performance to help buyers shop with confidence. Sellers who fall below standards of looking after their customers well, may be subject to limiting, restricting, suspending, or cancelling your seller account.
If we believe you are abusing SHIFT and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
When a buyer or seller issue arises, we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
2.3 Listing Conditions
When listing an item for sale on SHIFT Services, you agree to comply with the following;
2.4. Purchase Conditions
When buying an item on SHIFT, you agree to the following;
- The buyer didn't pay or respond to the unpaid item process
- The buyer is suspended
- The buyer's communication in the Dispute Resolution Process undermines the purpose of the unpaid item process and feedback system
2.5. International Buying and Selling; Translation
Many of our Services are accessible to international sellers and buyers. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items. If you purchase an item on a SHIFT site other than SHIFT.ooo, you are subject to the User Agreement of that other SHIFT site with respect to that particular purchase.
You authorize us to use automated tools to translate your SHIFT content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
2.6. Conduct of Auctions
1. The Auction types available are:
(a) Fixed ending time – where the auction ends on a specific date and time.
(b) Scheduled Auctions – where the auction will be scheduled to start at a specific time for specific days of each week.
(c) Sequential Online & Onsite Auctions- where Lots are sold sequentially one after the other as part of an Auction Event that starts at a specific time and date using either an online only format or through a digital live streaming interface in conjunction with a physical onsite auction. If an Auction is an Online & Onsite Auction, the online version will be slaved to the physical onsite auction by the Auction Event Organizer.
An Auction Event is where many individual auctions relating to the same activities are grouped into an event of a specific nature to be held at a specific time and auctioned in sequence.
Where an Auctioneer has been appointed at a physical onsite auction that is interfaced with SHIFT's sequential auctions, the Auctioneer shall conduct the Auction and will be responsible for entering all floor or offline bids into the SHIFT auction system to ensure online users receive updated price information on all bids made throughout the auction .
Where applicable, SHIFT shall determine in its discretion the order in which Lots will be submitted for sale. This may vary from the order set out in any Auction Event. For interface auctions this should occur in conjunction with the same order as the physical auction.
2. Bidding
Once there is a valid bid equal to or above the reserve price for a Lot, the Seller agrees to sell the Lot to the highest bidder:
(a) for sales conducted using SHIFT's, at the conclusion of the sale; and
(b) for sales conducted by an Auctioneer, on the drop of the hammer.
At a sequential live Auction, on the fall of the hammer the Seller may elect (but is under no obligation to) to sell to the highest bidder in circumstances where the highest bid is below the reserve price.
All bidders and every Purchaser participates in an Auction and buys a Lot on a caveat emptor basis.
A Buyer cannot ask the seller to end the auction earlier. This is interfering with the auction and it's not allowed.
3. Withdrawal of a Lot
SHIFT or a Seller may withdraw a Lot from sale before the Auction start time. For the avoidance of doubt and without prejudice to any other provision of the User Agreement terms or Sale Terms, SHIFT has no liability for any Loss, or any direct or economic loss (including pure economic loss) of whatever nature arising out of any act, error, omission, breach, fault or negligence of SHIFT.
4. Bidder's bid basis
A bidder may, before making a bid at an Auction, enter his bid basis subject to any requirements or guidelines which SHIFT may specify from time to time.
SHIFT does not warrant the integrity or creditworthiness of any Seller, Agent, Assessor, bidder or Purchaser and, in particular, does not provide or conduct any credit related review or assessments in connection with a bidder or Purchaser.
A Vendor engages an Assessor or Agent, and lists and sells his livestock on the SHIFT platform at their own risk.
When using third party payment gateways available on the SHIFT platform, the user must accept the terms and conditions of each third party payment provider and agrees to contract with them direct. Users must establish and verify a separate user account with their preferred payment provider.
5. Bidder as a principal
A bidder is deemed to be bidding on his own account as principal. Where a purchase is made by an Agent, the Agent shall be deemed to be the Purchaser and shall be so referenced in the order confirmation notice outlining the terms of the sale.
6. Making a bid
A bid is made only when it is recorded in the SHIFT platform bidding log or, in the case of a Online & Onsite Auction, has been accepted by the Auctioneer.
SHIFT may refuse to accept any bid that in their opinion is not in the best interests of the Seller.
Advance of bidding. A bidder may advance only by the bidding increments available on the SHIFT platform or the Auctioneer for the Auction.
7. Withdrawal of bids
A bidder may not withdraw a bid. Where the bid was mistakenly placed by the bidder, SHIFT may, in its sole discretion, allow the withdrawal of a bid. If SHIFT permits the withdrawal of a bid, the bidder is liable for any difference in price between the withdrawn bid and the bid of any successful underbidder where the underbidder's bid is lower and the underbidder is willing to accept and any associated selling costs if required to relist.
8. Seller's bids
A Seller may only bid for its own Lot through an Auctioneer, in accordance with all applicable State and Territory laws and regulations.
A Seller must not bid on its own Lot using the SHIFT platform and acknowledges that the SHIFT platform is not capable of allowing a Seller to comply with various State and Territory laws and regulations.
9. Disputes about bidding
If there is any dispute about the bidding in any of the auction formats, SHIFT is the sole arbitrator and their decision is final.
10. Compliance with Seller's restrictions
Where the Seller has imposed conditions, bidders must not make bids inconsistent with those conditions. SHIFT or the Auctioneer as applicable may refuse to take any such bid or cancel any contract resulting from any such bid.
11. Compliance
The Seller and Purchaser must comply with their respective obligations under the Contract of Sale, including in relation to delivery and payment obligations of the Purchaser.
12. Passed in Lots and Negotiated Sales
A Lot will be passed in when, at the completion of the Auction for that Lot, the highest bid that is recorded by the SHIFT platform is less than the reserve price.
If a Lot is not sold or deemed to be sold at the Auction, the Seller may negotiate a sale of the Lot with the bidder who made the highest bid at the Auction. Where a sale of the Lot is negotiated, the buyer must use the 'Make an Offer' function within that auction and the Seller must accept the negotiated price using the mechanisms and payment gateways provided within the SHIFT platform.
13. Goods and Services Taxes, Sales Tax & VAT
All Auctions shall be conducted on the basis that the bid and sale price shall be inclusive of any relevant state or federal taxes, including livestock.
3.0 Crowdsourcing
The SHIFT Platform is offered to help Campaign Organisers raise money. SHIFT merely provides the technology to allow fundraisers to connect with Donors and Event Organizers to connect with attendees. The existence of the Services is not a solicitation of donations by SHIFT, and SHIFT does not engage in any solicitation activities or consult on the solicitation of contributions from the public, on behalf of any individual, entity or organisation. By using the Services, you understand and agree that SHIFT shall not be responsible for the use of your donations or the amount of funds raised for the User, Campaign or Event.
3.1. No Solicitation:
The SHIFT Platform is offered to help Campaign Organisers raise money. SHIFT merely provides the technology to allow fundraisers to connect with Donors. The existence of the Services is not a solicitation of donations by SHIFT, and SHIFT does not engage in any solicitation activities or consult on the solicitation of contributions from the public, on behalf of any individual, entity or organisation. By using the Services, you understand and agree that SHIFT shall not be responsible for the use of your donations or the amount of funds raised for the User, Campaign or event.
3.2. Donors
All Donations are at your own risk. When you make a Donation through the Platforms, it is your responsibility to understand how your money will be used. SHIFT is not responsible for any offers, promises, rewards or promotions made or offered by Users or Campaigns. We do not and cannot verify the information that Users or Campaigns supply, nor do we represent or guarantee that the Donations will be used in accordance with any fundraising purpose prescribed by a User or Campaign or in accordance with applicable laws. Notwithstanding the foregoing, we take possible fraudulent activity and the misuse of funds raised very seriously. Learn more about our Fraud Policy. If you have reason to believe that a User or Campaign is not raising or using the funds for their stated purpose, please click the "Report fundraiser" link on the Campaign to alert our team of this potential issue and we will investigate. If you are a donor, you may also be covered by the SHIFT Guarantee. Certain states require written disclosures for Charities soliciting contributions.
SHIFT makes no representation as to whether all or any portion of your Donations, including any Transaction Fees, are tax deductible or eligible for tax credits. SHIFT will have no liability for any claim by any federal, state, provincial, territorial, local or any other tax authority with respect to the characterisation on any applicable tax return of any Donation by you, any User or any Charity. You should consult a tax advisor as to the amount of your Donation that is tax deductible or eligible for tax recognition, having regard to (among other things) the tax status of the recipient of any Donation in any relevant jurisdiction, and particularly if you are awarded a gift or prize in connection with your Donation.
Donors shall provide SHIFT with such information as is required for you to enable the issuing of an official Donation receipt. Donor acknowledges and agrees that, in accordance with the Privacy Policy, some of Donor's personal information will be shared with the Charity to which such Donor makes a donation (including without limitation as part of a Donor List, as set forth above) and may be used by such Charity in accordance with the Charity's Privacy Policy. SHIFT is not responsible and shall not be liable for any Charity's use of any Donor information.
3.3. Campaign Organiser
You, as a Campaign Organiser, represent, warrant and covenant that (i) all information you provide in connection with a Campaign or Beneficiary is accurate, complete, and not likely to deceive reasonable Users; (ii) all Donations contributed to your Campaign will be used solely as described in the materials that you post or otherwise provide; (iii) if you withdraw donations believed by reasonable Donors to be raised on behalf of someone other than you (i.e., the Beneficiary), all Donations will be given to and/or spent on behalf of the Beneficiary; (iv) if you add a Beneficiary through the Services, you relinquish control of the Donations, including the ability to issue refunds; (v) you will not infringe the rights of others; (vi) you will comply with all relevant and applicable laws and financial reporting obligations, including but not limited to laws and regulations relating to registration, tax reporting, political contributions and asset disclosures for your project; and (vii) to the extent you share with us any personal data of any third party for any purpose, including the names, email addresses and phone numbers of your personal contacts, you have the authority (including any necessary consents), as required under applicable law, to provide us with such personal data and allow us to use such personal data for the purposes for which you shared it with us. You authorise SHIFT, and SHIFT reserves the right to provide information relating to your Campaign to Donors, beneficiaries of your Campaign or law enforcement, and to assist in any investigation thereof.
If you use the Services as an agent of a Charity using the services to raise funds for such Charity, you represent and warrant that: (a) you are a representative of the Charity, which representative is authorised to raise funds or bind the Charity to these Terms of Service; (b) you are raising funds for a Charity, with a cause or activity that is legal under all applicable federal, state, provincial, territorial and local laws and regulations; (c) all donated funds will be used solely for the purpose you have stated on and in connection with your Campaign, and under no circumstances may you use the funds for any other purpose; (d) your Charity has and will maintain tax-exempt status under applicable law (e.g. the Internal Revenue Code in the United States or the Income Tax Act in Canada); or (e) if your Charity is in the United States, your Charity is registered with GuideStar or the IRS tax exempt organisation database or, in Canada, is listed in the Canada Revenue Agency's database of registered charities.
Form of Receipt. A Charity that issues official Donation receipts may at any time change the template of the form of receipt being issued as necessary from the settings of their Campaign to ensure compliance with Applicable Laws.
3.4. Ownership of Donor Lists and Data With respect to SHIFT and Charity using the SHIFT Platform, Charity may access their Donor Lists (defined below) and Donor Data (defined below) for compliance and transactional purposes from the settings within their Campaign.
With regard to SHIFT and Charity using the SHIFT Platform, with respect to Donor lists and Donor Data that SHIFT has received exclusively by means of a donation to such Charity and by no other means, and to the extent permitted by the Privacy Policy and applicable law, Charity shall own the Donor Data of Donors who have provided a Donation to Charity, including contact information of such Donors; provided, however, that Charity grants to SHIFT a worldwide, non-exclusive, royalty-free, perpetual licence to use Donor Data for the following purposes:
(a) to provide the Services, including account administration and processing donations;
(b) to enforce our agreements;
(c) fraud prevention, safety, security, and compliance with law;
(d) to respond to law enforcement requests;
(e) research and analytics;
(f) to customise, adjust, and improve the Services; and
(g) to develop new services. "Donor Data" shall mean a Donor's name, address, email address, donation amount, date of transaction, transaction identification number, name of the project and event associated with the Donation.
THE LIST OF DONORS WHO CONTRIBUTE TO A CHARITY'S CAMPAIGN OR EVENT CONDUCTED THROUGH THE SERVICES ("DONOR LISTS") ARE PROVIDED "AS IS", AND SHIFT MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES ABOUT THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY DONOR LIST OR ANY INFORMATION CONTAINED THEREIN. By using these Services, all Donors consent to the disclosure of such Donor Lists and Donor Data described in this Section.
3.5. Public Content, Public Display of Information and Donations:
Some of your activity on and through the Services is public, such as any content you post publicly on the Platforms (including descriptions, texts, music, sound, information, data, software, graphics, comments, photos, videos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients) ("User Content"). Additionally, user profile information, including your first and last name, public email address, organisation, personal biography and other information you enter in connection with your user profile may be displayed to other users to facilitate user interaction within the Services. For example, as a Campaign Organiser, you might post personal details – such as information about a recent hospital stay – which might be considered sensitive data. In addition, as a Donor, you have the option to publicly display your Donation for all to see, including on search engines (like Google and Yahoo). To keep the details of your Donation private from the general public, simply click the "Private" tick box during the Donation process. Please remember that if you choose to provide information using certain public features of the Services, then that information is governed by the privacy settings of those particular features and may be publicly available. Individuals reading such information may use or disclose it to other individuals or entities without our knowledge and without your knowledge and search engines may index that information. We therefore urge you to think carefully about including any explicit information that you may deem private in content that you create or information that you submit through the Services. Please see our Privacy Policy for information on the ways that we may collect, use and store certain details about you and your use of the Services.
3.6. Unsolicited Information:
Please be advised that User Content and other unsolicited information you provide may be publicly accessible, such as information you post in forums or comment sections. We also collect information through customer support communications, your communications to us of ideas for new products or modifications to existing products, and other unsolicited submissions, or any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, with publicly-accessible information, "Unsolicited Information"). By sending us Unsolicited Information, (a) you agree that we are under no obligation of confidentiality, expressed or implied, with respect to the Unsolicited Information; (b) you acknowledge that we may have something similar to the Unsolicited Information already under consideration or in development; (c) you agree that SHIFT will be entitled to the unrestricted use and dissemination of the Unsolicited Information for any purpose, commercial or otherwise, without acknowledgment or compensation to you; (d) you represent and warrant that you have all rights necessary to submit the Unsolicited Information; (e) to the extent necessary, you hereby grant to SHIFT a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully transferable and sub-licensable right (through multiple tiers) and licence to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Unsolicited Information, and to sub-license the foregoing rights; and (f) you irrevocably waive, and cause to be waived, against SHIFT and its users any claims and assertions of any moral rights contained in such Unsolicited Information. This Unsolicited Information section shall survive any termination of your account or the Services.
You acknowledge and agree that SHIFT may retain Unsolicited Information, as well as User Content, and may also disclose your Unsolicited Information or User Content if required to do so by law or in the good-faith belief that such retention or disclosure is reasonably necessary to (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property or personal safety of SHIFT, its users or the public.
3.7. Third-Party Communications:
If you use any feature of the Services that allows you to communicate with third parties (such as to refer a third party to the Services or to communicate with them regarding a Campaign or a donation), either by submitting Third-Party Data to the Services or otherwise permitting the Services to automatically access Third-Party Data in your possession, you acknowledge and agree that you have the authority of the relevant third party for us to access and use the relevant Third-Party Data and that you have notified these third parties and informed them how their information is collected and used by SHIFT to provide the Services. We reserve the right to identify you as the person who has made the referral in any messages that are sent to them. We use Third-Party Data to (a) contact such third party using the Third-Party Data provided, and/or (b) provide you with an editable template message designed to facilitate communications between you and such third party through the Services. In addition to sending the foregoing communications, we may also send reminders or related messages to you and to third parties on your behalf from time to time where permitted by applicable law. In each case, any such communication sent to third parties using Third-Party Data will provide a means of "opting out" of receiving further communications of a similar nature.
3.8. Promotions on the SHIFT Platform:
You are not permitted to offer any contest, competition, reward, give-away, raffle, sweepstake or similar activity (each, a "Promotion") on or through the SHIFT Services.
You are not permitted to offer any Promotion on the SHIFT Platform without our prior written consent. You may seek permission by sending an email to [email protected]. If we consent, you take full responsibility for the Promotion, and you agree that:
(a) such Promotion shall comply with all applicable laws; (b) you are solely responsible for all facets of the Promotion, including without limitation any prizes offered; (c) you may not use the our intellectual property in the rules or any other materials relating to the Promotion without our express written permission; (d) such Promotion does not require making a Donation as the only way to enter; (e) you are responsible for the marketing of the Promotion, and that such Promotion is not marketed to anyone under either the age of 18 or the age of majority for the jurisdiction in which you reside, whichever age is older; (f) prizes, rewards, give-aways or incentives are not intended to be items available for purchase; and (g) such Promotion may not endorse, sponsor or promote anything related to gambling, alcohol, illegal or prescription drugs, medical devices, national health products, firearms, pornography or tobacco. You will include the following provisions within your official rules for any Promotion that you choose to publicise on SHIFT: (i) SHIFT does not sponsor or endorse the Promotion; (ii) SHIFT does not guarantee the delivery of any reward, incentive or other prize offered by you; (iii) each participant or entrant in the Promotion releases SHIFT from any and all liability; and (iv) all questions concerning the Promotion must be directed to you and not to SHIFT.
If you or any other third party offer to match funds raised for a Charity SHIFT, you or such third party are solely responsible for providing those matching funds to the Charity and for complying with any legal obligations associated with such a match. SHIFT shall have no responsibility for providing such matching funds, ensuring that you or the third party provides those funds, or ensuring any relevant legal obligations are met.
4.0 Prohibited Conduct
If you are a User located in Australia, references to "SHIFT", "we", "us", "our" and other similar terms in this section (Prohibited Conduct) shall be read as references to Global Guardian Services Pty Ltd and SHIFT.
You are solely responsible for complying with all applicable law in relation to any of the Services in your jurisdiction. You are further solely responsible for all User Content that you upload, post, publish, display, transmit or otherwise use (hereinafter, "Upload"). If you are not the beneficiary of the Campaign which you organise, you agree to deliver funds to the ultimate beneficiary directly and as soon as possible. You agree to fully cooperate with any request we make for evidence we deem necessary to verify your compliance with these Terms of Service.
The following are examples of User Content and/or use that is illegal or prohibited by SHIFT. This list is not exhaustive and we reserve the right to remove any content and/or investigate any User who, at our sole discretion, violates any of the terms or spirit of these Terms of Service. As we investigate Your activity, a User or User Content, we may consider all available material including but not limited to social media, related news, and any other information that we, at our sole discretion, deem relevant to our review. We further reserve the right, without limitation, to ban or disable your use of the Services, remove the offending User Content, suspend or terminate Your account, stop payments to any such Campaign or other Service, freeze or place a hold on Donations and report you to law enforcement authorities or otherwise take appropriate legal action including seeking restitution on behalf of ourselves and/or our users.
4.1 Notwithstanding the foregoing, you agree not to use the Services to post or view content, buy or sell any items or services, raise funds or establish or contribute to any Campaign with the implicit or explicit purpose of or involving:
i) the violation of any law, regulation, industry requirement, or third-party guidelines or agreements by which you are bound, including those of payment card providers and transaction processors that you utilise in connection with the Services;
ii) any election campaigns that are not run by a registered organisation within the supported country;
iii) user content or campaigns that are fraudulent, misleading, inaccurate, dishonest or impossible;
v) drugs, narcotics, steroids, controlled substances, pharmaceuticals or similar products or therapies that are either illegal, prohibited or forbidden by an applicable regulatory body;
vi) legal substances that provide the same effect as an illegal drug;
vii) or other products, medical practices or any related equipment or paraphernalia that have been found by an applicable regulatory body to cause consumer harm;
viii) knives, explosives, ammunition, firearms, or other weaponry or accessories without going through the necessary channels using the protocols as prescribed by the law in your jurisdiction;
ix) annuities, investments, loans, equity or lottery contracts, lay-away systems, off-shore banking or similar transactions, money service businesses (including currency exchanges, cheque cashing or similar), pyramid schemes, 'get rich quick schemes' (i.e. investment opportunities or other services that promise high rewards), network marketing and referral marketing programmes, debt collection or crypto-currencies;
x) gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to raffles, casino games, sports betting, fantasy sports, horse or greyhound racing, lottery tickets, raffle tickets, auctions and other ventures that facilitate gambling, games of skill or chance (whether or not it is legally defined as a lottery), promotions involving monetary rewards, including gift vouchers, or sweepstakes;
4.2
4.3 Not to use the Services to transmit or otherwise upload any User Content that (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorised advertising, promotional materials, commercial activities and/or sales, "junk mail", "spam", "chain letters", "pyramid schemes", "contests", "sweepstakes" or any other form of solicitation; or (vi) in the sole judgment of SHIFT, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose SHIFT or its users to any harm or liability of any type;
4.4 Additionally, with respect to all Donations you make or accept through the Services, you agree:
SHIFT reserves the right to refuse, condition, or suspend any Donations or other transactions that we believe in our sole discretion may violate the Terms of Service or harm the interests of our users, business partners, the public, or SHIFT, or that expose you, SHIFT, or others to risks unacceptable to us. We may share any information related to your use of the Services with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your account, your Donors, your Donations, and transactions made through or in connection with your use of the Services.
5.0. Events
SHIFT provides a simple and quick means for Organisers to create speaker profiles, organiser profiles, and other webpages related to their events, promote those pages and events to visitors or browsers on the Services or elsewhere online, manage online or onsite ticketing and registration, solicit donations, and sell or reserve merchandise related to those events to Consumers or other Users.
SHIFT is not the creator, organiser or owner of the events listed on the platform. Rather, SHIFT provides its services, which allow Organisers to manage ticketing and registration and promote their events. The Organiser is solely responsible for ensuring that any page displaying an event on the Services (and the event itself) meet all applicable local, state, provincial, national and other laws, rules and regulations, and that the goods and services described on the event page are delivered as described and in an accurate satisfactory manner.
5.1. Licences and Permits Organisers Must Obtain
If you are an Organiser, without limiting the generality of any representations or warranties provided elsewhere in these Terms of Service, you represent and warrant to us that:
(a) You and your affiliates will obtain, prior to the start of ticket sales, all applicable licences, permits, and authorizations (individually and collectively, "Licensure") with respect to events hosted by you or your affiliates on the Services. Licensure includes but is not limited to property operation permits and fire marshal permits;
(b) You and your affiliates will comply, and will ensure that the venues for each event hosted by you or your affiliates on the Services will comply, with all applicable laws, regulations, rules and ordinances;
(c) You will only request that SHIFT offer tickets to an event after you have obtained any specific Licensures for such event, including, but not limited to, any state, county, municipal or other local authority's authorization of the event, traffic engineering authorizations, fire department inspection reports, authorization to receive minors (if applicable), sanitary authorization (if applicable), and any other potential applicable authorization; and you and your affiliates will maintain in force throughout the term of access to the Service the applicable Licensure for organiser to promote, produce, sponsor host and sell tickets for all events hosted by you or your affiliates on the Services
(d) Without limiting the generality of any release provided under these Terms of Service, as a material inducement to SHIFT permitting you to access and use the Services, you hereby agree to release SHIFT, and its affiliates and subsidiaries, and each of its and their respective parent companies, subsidiaries, officers, affiliates, representatives, shareholders, contractors, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, including, without limitation, attorneys' fees, known and unknown, arising out of or in any way connected with your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure.
(e) Without limiting your indemnification obligations elsewhere under these Terms of Service, you agree to defend, indemnify and hold SHIFT, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any Claim due to or arising out of your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure. You agree to provide evidence of Licensure and related information prior to offering tickets or registrations for events on the Site and promptly upon the reasonable request of SHIFT from time to time.
6.0 Special Provisions for Jobs
Each User acknowledges:
7.0 Returns and Cancellations
Most sellers accept returns if you've changed your mind about an item – check the listing for full details of their return policy. If there's something wrong with your item, you're entitled to return it, regardless of the seller's return policy.
If you no longer want an item, most sellers offer returns. Check the listing to see the seller's full return policy, including how long you have to request a return and any other conditions.
7.1. Start a Return
You can check the listing by selecting the item in your My Purchased Items tab listed in your My Account of the Marketplace. If the seller states in their return policy that they don't accept returns, you can ask them to see if they'll make an exception.
To start a return, select the item you want to send back from your recent purchases above, or follow these steps:
Once you've started a return, you can check on the status of your request at any time by clicking on View Detail in the Request Refund column of your transaction table.
If the item you received doesn't match the description in the original listing, or if it arrived faulty or damaged, you're covered under the Money Back Guarantee offered by PayPal for amounts up to $20,000. For full details about your Buyer Protection, click here.
Once you start a return, the seller has 3 business days to sort things out. If your problem isn't resolved at the end of those 3 days, you can ask us to step in and help or you can go direct to PayPal and open a dispute with them.
7.2. Send the item back
Once the seller has accepted your return, it's important to send the item back promptly within 3 days from the date that we or the seller sends you a message via an in-app notification and/or email that you're request has been accepted, by which you should post it. If you don't post the return within this timeframe, we may close the request and you won't receive a refund..
Make sure you add tracking details to your return in the messages section of your refund request to help protect against delays or issues in the refund process.
Keep in mind that the condition you send the item back to the seller in is important, so repack it carefully. If you return the item used, damaged or missing parts, or if it gets damaged during return postage, the seller may deduct an amount from your refund to cover the loss in the item's value.
7.3. Cost of Returns
The cost of return shipping for an item that is not as described is the Seller's responsibility, where the purchase price of the items is less than 5,000 in the currency the item was sold. Where the purchase price is 5,000 or greater, the cost of return shipping is to be shared equally between the Buyer and Seller. The Buyer has a responsibility to conduct their own due diligence and confirm to their own satisfaction, that the item they are purchasing is as represented.
7.4. Get your refund
Once the seller receives the item back from you, or once they've agreed to refund you and let you keep the item, they have 3 business days to issue your refund. When they do, you'll receive another message letting you know of this 'Refunded' updated status.
It usually takes 3 to 5 business days for a PayPal refund to go through. If you paid with a credit card, it may take up to 30 days to process, depending on your card provider.
7.5. Get help from SHIFT
Most of the time if you have an issue with a purchase, the seller will be able to solve it for you. However, we're always ready to step in and help if the seller doesn't sort things out. Once the 3 business days has passed, you generally have up to 21 business days after the request was opened to ask us for help.
7.6. Cancelling a request
If you've changed your mind about a case you've opened, and no longer want return your item, it's easy to cancel your request.
To cancel a Return request:
It's important to make sure you're certain you want to cancel a request, as you won't be able to re-open a case once it's been closed.
8.0 Money Back Assurance & Dispute Resolution
If there's a problem with a purchase, the Money Back Guarantee offered by PayPal helps buyers and sellers communicate and resolve issues. It also protects you for the full purchase price plus shipping costs, up to $20,000 per item. For full details of the Guarantee and Protections offered to you as a Buyer, click here. For full details of the Guarantee and Protections offered to you as a Seller, click here. Buyers and Sellers who transact outside of SHIFT's payment gateways will not receive any protection under the Money Back Guarantee.
SHIFT offers Dispute Resolution Services between Buyers and Sellers. SHIFT can assist you in the initial phase or process by opening the lines of communication between the Buyer and Seller and offering an independent objective perspective.
You agree and acknowledge that: (i) SHIFT is not providing legal services; (ii) SHIFT will not advise you regarding any legal matters; and (iii) if you desire to have legal counsel, you will seek an independent legal counsel from those licensed to practice law in your jurisdiction. You will not rely on SHIFT for any such counsel.
In the event of a dispute between a Buyer and a Seller, either Buyer or Seller may elect to use the Dispute Resolution Services offered by SHIFT. The Buyer and Seller will then be notified that the lines of communication have been opened through the Dispute Resolution Service.
You agree to indemnify and (to the maximum extent permitted by law) hold SHIFT and any of our affiliates harmless against any damages or liability you may suffer as a result of using the Dispute Resolution Services.
9.0 Transaction Fees
The fees we charge for using our Services are listed on our fees page. We may change our transaction fees from time to time by posting the changes on the SHIFT site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
If you are a seller, you are liable for transaction fees arising out of all sales made using some or all SHIFT Services, even if sales terms are finalized or payment is made outside of SHIFT, except in the case of a paid Classified listing. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of SHIFT, you may be liable to pay a transaction fee applicable to that item, even if the item doesn't sell, given your usage of SHIFT Services for the introduction to a buyer.
Transaction fees don't purchase exclusive rights to item exposure on SHIFT, whether on a web page, mobile app, or otherwise. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
You are responsible for paying any taxes, including any goods and services, sales tax or value added taxes, which may be applicable depending on the jurisdiction of the services provided.
Depending on your residency or location, you may be subject to certain ad valorem or other taxes (for example, GST in Australia), on certain fees that we charge. These taxes will be added to fees billed to you, if applicable.
You acknowledge that you must comply with your obligations under income tax provisions in your jurisdiction.
Certain Sellers who are either registered or required to be registered for GST may be required to charge GST to Australian Consumers.
SHIFT has appointed PayPal to manage transactions of $5,000 or less and Escrow.com to manage transactions greater than $5,000. Both payment gateways are facilitated by an API (Automatic Programming Interface) integration with the PayPal and Escrow.com platforms, for ease of access of information and to provide a seamless user experience. You acknowledge and agree that you are entering into an arrangement and contract direct with PayPal and Escrow.com in using their services and are bound by their terms and conditions of use. It is not a compulsory condition that you use the payment gateways provided on our Website in order to use the services, tools and marketplace of SHIFT. The Classified selling format allows you to transact privately using a payment method of the Sellers choice.
We may in our sole discretion, from time to time, appoint our related bodies corporate, affiliates, or any other third party to act as our agent to accept or make payments (including merchant facilities) from or to Users on our behalf.
12.0 Feedback, Reputation and Reviews
If you've successfully completed a transaction with another SHIFT member and they haven't left you feedback, it's fine to send a message as a reminder. Remember though, leaving feedback is completely voluntary.
When providing feedback using the SHIFT platform, each User agrees not to:
(a)submit material that is copyrighted, confidential or otherwise subject to third party proprietary rights, including privacy rights, unless the User is the owner of such rights or has permission from the owner to post the material ;
(b) publish falsehoods or misrepresentations that could damage SHIFT or any third party;
(c) post or transmit any material or information which is offensive, defamatory, obscene, unlawful, misleading, deceptive, vulgar, harmful, threatening, abusive, harassing, ethnically objectionable, or is otherwise inappropriate; or
(d) impersonate another person.
Sellers aren't allowed to include terms and conditions in a listing that limit or restrict the buyer from leaving feedback.
Members can't exchange feedback solely for the purpose of increasing feedback scores, gaining privileges, or enhancing their reputation on our site. Neither can they influence another member's feedback through a series of repeat purchases, or by leaving negative comments with a positive rating.
Buyers aren't allowed to use threats of negative feedback or low detailed seller ratings to get something that wasn't part of the original listings, and sellers can't demand positive feedback from buyers.
You acknowledge that you transfer copyright of any feedback, reputation or reviews you leave consisting of comments and any rating(s) (e.g. quality, communication etc.) together with any composite rating by us. You acknowledge that such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on our Website while you remain a User. You must not use, or deal with, such feedback, reputation and reviews in any way inconsistent with our policies as posted on the Website from time to time without our prior written permission.
You may not do (or omit to do) anything that may undermine the integrity of the SHIFT feedback system. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted.
Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of trade and services via the Website. You may not use your Seller or Buyer feedback (including, but not limited to, marketing or exporting your any or all of your composite rating(s) or feedback comments) in any real or virtual venue other than a website operated by SHIFT or its related entities, without our written permission.
SHIFT does not endorse any User opinion, recommendation, or advice expressed through the feedback mechanism on the SHIFT platform, and expressly disclaims any and all liability in connection with any User feedback provided including liability relating to breaches of third party's proprietary rights and claims for defamation.
13.0 No Warranty as to Each User's Purported Identity
We cannot and do not confirm each User's purported identity on the Website. We may provide information about a User, such as geographical location, or third party background check or verification of identity or credentials. However, such information is based solely on data that a User submits and we provide such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by us.
You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity. You must, at our request: (1) provide further information to us, which may include your date of birth and or other information that will allow us to reasonably identify you; (2) take steps to confirm ownership of your email address or financial instruments; or (3) verify your information against third party databases or through other sources.
You must also, at our request, provide copies of identification documents (such as your passport or driver's licence). We may also ask you to provide photographic identification holding your identification together with a sign with a code that we provide as an additional identity verification step. We also reserve the right to request a video interview with you to validate this information, your identity, your background and your skills.
We reserve the right to close, suspend, or limit access to your Account, the Website and/or SHIFT Services in the event we are unable to obtain or verify to our satisfaction the information which we request under this section.
We reserve the right to update your particulars on the website in order to match any identity documentation that has been provided. Disbursements such as wire transfers from the website may only be made to the beneficiary matching your provided identity documents and account information.
14.0 Content
When you give us content, you grant us a worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
You acknowledge and agree that: (1) we act only as a forum for the online distribution and publication of User content including the trade of user generated items and services. We make no warranty that User content is made available on the Website. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to your User content; (2) we have no responsibility or liability for the deletion or failure to store any content, whether or not the content was actually made available on the Website; (3) the results of the sale of any Auction may be provided to third parties and may subsequently be published and (4) any and all content submitted to the Website is subject to our approval. We may reject, approve or modify your User content at our sole discretion.
14.1. You represent and warrant that your content:
You acknowledge and agree that we may transfer your personal information to a related body corporate and your information may be transferred outside of Australia or the EEC-area. If you wish to withdraw your consent, you acknowledge and agree that we may be unable to provide you with access to the Website and SHIFT Services and may close your Account.
Information on the Website may contain general information about legal, financial, health and other matters. The information is not advice, and should not be treated as such. You must not rely on the information on the Website as an alternative to professional advice. If you have specific questions about any matter you should consult your professional adviser.
We provide unmonitored access to third party content, including User feedback and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content on the Website, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline.
The Website may contain links to other third party websites. We do not control the websites to which we link from the Website. We do not endorse the content, products, services, practices, policies or performance of the websites we link to from the Website. Use of third party content, links to third party content and/or websites is at your risk.
In relation to deletion or hiding of any information or content, using the Website to delete, hide or otherwise dispose of information does not imply permanent deletion of content or information. Information may be retained for a period of time to fulfil record keeping, regulatory, compliance, statistical, law enforcement and other obligations.
14.2. No Warranty as to Content
The Website is a dynamic time-sensitive Website. As such, information on the Website will change frequently. It is possible that some information could be considered offensive, harmful, inaccurate or misleading or mislabelled or deceptively labelled accidentally by us or accidentally or purposefully by a third party.
Our Services, the Website and all content on it are provided on an 'as is', 'with all faults' and 'as available' basis and without warranties of any kind either express or implied. Without limiting the foregoing, we make no representation or warranty about:
To every extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability and non-infringement.
15.0 Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. If you believe that your intellectual property rights have been infringed, please notify our team and we will investigate.
16.0 Privacy
We use your information as described in the SHIFT Privacy Policy If you object to your information being transferred or used in this way then you must not use our services. For the avoidance of doubt, your name and personal details shall be used for identity purposes in the normal course of conducting business in this online marketplace. This may include on invoices and purchase orders including but not limited to between transacting parties, including those automatically generated on awarding, accepting and payment.
16.1. Privacy of Others; Marketing
If SHIFT provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to the Services. Additionally, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
16.2. Authorization to Contact You; Recording Calls; Analyzing Message Content
SHIFT may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. SHIFT may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by the User Privacy Notice.
SHIFT may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with SHIFT or its agents for quality control and training purposes, or for its own protection.
SHIFT's automated systems scan and analyze the contents of posts, comments and messages, including messages between users, to detect and prevent fraudulent activity or violations of SHIFT's User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. SHIFT may store message contents, to conduct this scanning and analysis.
17.0 Holds
To protect SHIFT from risk of liability for your actions as a seller, SHIFT may recommend, that PayPal or Escrow.com restrict access to funds in a seller's PayPal account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category and transaction value. This may result in PayPal or Escrow.com restricting funds in your account.
18.0 Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in SHIFT's applications may not occur in real time. Such functionality is subject to delays beyond SHIFT 's control
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) any amounts due under the SHIFT Money Back Guarantee up to the price the item sold for on SHIFT(including any applicable sales tax) and its original shipping costs, (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (c) $100.
18.1. Release
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favour at the time of agreeing to this release.
18.2. Indemnity
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of SHIFT 's Services or your breach of any law or the rights of a third party.
18.3. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SHIFTHAVE AGAINST EACH OTHER ARE RESOLVED.
If a dispute arises between you and SHIFT, our goal is to address your concerns immediately and, if we are unable to do so to your satisfaction, to provide you with a means of resolving the dispute quickly. We strongly encourage you to first contact us directly to seek a resolution by emailing us at [email protected].
You and SHIFT agree that any claim or dispute at law or equity that has arisen, or may arise, between you and SHIFT(including any claim or dispute between you and a third-party agent of SHIFT) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of SHIFT or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
18.4. Applicable Law
You agree that, except to the extent inconsistent with or pre-empted by federal law, the laws of the State of New South Wales, Australia, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and SHIFT, except as otherwise stated in this User Agreement.
18.5. Agreement to Arbitrate
You and SHIFT each agree that any and all disputes or claims that have arisen, or may arise, between you and SHIFT(including any disputes or claims between you and a third-party agent of SHIFT) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of SHIFT or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
18.6. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SHIFT AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND SHIFTAGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and SHIFT 's right to appeal the court's decision. All other claims will be arbitrated.
18.7. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the Australian Centre for International Commercial Arbitration (ACICA) under its rules and procedures, as modified by this Agreement to Arbitrate. The ACICA's rules are available at www.acica.org.au or by calling the ACICA at 61-2-9223-1099. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the ACICA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). You may download a form Notice. The Notice to SHIFT should be sent to Global Guardian Services Pty Ltd, [email protected]
SHIFT will send any Notice to you to the physical address we have on file associated with your SHIFT account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and SHIFT are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or SHIFT may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the ACICA's site at www.acica.org.au . In addition to filing this form with the ACICA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to SHIFT at the following address: Global Guardian Services Pty Ltd, Suite 2, 44 Gordon Street, Mackay QLD 4740
In the event SHIFT initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your SHIFT account. Any settlement offer made by you or SHIFT shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in Sydney, Australia or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or SHIFT may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and SHIFT subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or SHIFT may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honour all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same SHIFT user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
18.8. Severability
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
18.9. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against SHIFT prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and SHIFT. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.shift.ooo at least 30 days before the effective date of the amendments and by providing notice by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
18.10. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and SHIFT must be resolved exclusively by a state or federal court located in New South Wales, Australia. You and SHIFT agree to submit to the personal jurisdiction of the courts located within New South Wales, Australia for the purpose of litigating all such claims or disputes.
18.11. General
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.shift.ooo.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.shift.ooo. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the SHIFT Message Centre and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a SHIFT representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the SHIFT Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and SHIFT, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
19.0 Security
You must immediately notify us upon becoming aware of any unauthorised access or any other security breach to the Website, your Account or the SHIFT Services and do everything possible to mitigate the unauthorised access or security breach (including preserving evidence and notifying appropriate authorities). Your User Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorised access of your account resulting from your failure to secure your password.
20.0 Abusing SHIFT
SHIFT reserves to the greatest extent possible all rights, without limiting any other remedies, to limit, suspend or terminate our service(s) and or user account(s), suspend or ban access to our services, remove any content, and to take any and all technical or legal steps to ban users.
Without limiting the reasons for taking the aforementioned actions, conduct giving rise to this response could include:
21.0 Feedback
If you have any questions about this User Agreement or if you wish to report breaches of this User Agreement, please contact us by emailing us at [email protected].
