OVERVIEW

 

This website is operated by Shift Robotics. Throughout the site, the terms “we”, “us” and “our” refer to Shift Robotics. Shift Robotics offers this website, including all information, tools and Services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here. By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

 

READ THESE TERMS CAREFULLY, AS THEY CONTAIN TERMS AND CONDITIONS THAT IMPACT YOUR RIGHTS, OBLIGATIONS, AND REMEDIES IN CONNECTION WITH THE SERVICES, INCLUDING AN AGREEMENT TO ARBITRATE FOR ANY DISPUTE RESOLUTION UNDER SECTION 19 BELOW.

 

SECTION 1 - ACCEPTANCE

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

SECTION 2 - CHANGES TO TERMS

 

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right, in our sole discretion, to update, change or replace any part of these Terms of Service at any time and without prior notice by posting updates and/or changes to our website. All changes are effective immediately when we post them unless we expressly specify otherwise. In any event, no changes will apply retroactively as to any claims existing prior to the “last updated” date. If we choose to amend these Terms, we will update the “Last Updated” date at the top of these Terms and post the updated version. It is your responsibility to check this page periodically for changes, as they are binding on you. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes. For material changes to these Terms, we may also reserve the right to provide notice through alternative means, such as posting said changes to the website and/or communicating via e-mail or other communication channel.

SECTION 3 – SHOPIFY AND THIRD-PARTY TECHNOLOGIES AND DATA SHARING

 

Our store is hosted on Shopify Inc. (“Shopify”). Shopify provides us with the online e-commerce platform that allows us to sell our products and Services to you. Your data is processed by Shopify in accordance with Shopify’s privacy policy, available at https://www.shopify.com/legal/privacy.

In addition to Shopify, we use various third-party technologies, software, tools, and service providers (collectively, “Third-Party Technologies”) to operate, maintain, enhance, and analyze the performance of our Site and Services. These Third-Party Technologies may include, without limitation: (a) analytics tools and services (such as Google Analytics) that help us understand how visitors interact with our Site; (b) advertising and marketing tools that enable us to deliver targeted content and measure campaign effectiveness; (c) chat and customer support tools; (d) payment processors; (e) fraud prevention and security tools; (f) session replay and user behavior analysis tools; and (g) cookies, pixels, tags, and similar tracking technologies. We may share with these Third-Party Technologies information about you, including your device information, IP address, browsing activity, and interactions with our Site. More information about such Third-Party Technologies and how we use them may be found in our Privacy Policy. To view our Privacy Policy, please click here.

By agreeing to these Terms, you acknowledge that you have been informed of these Third-Party Technologies. You can control the settings of certain Third-Party Technologies through the Manage Settings tool offered on our Site. You further acknowledge that the Third-Party Technologies may operate independently from us and are subject to their own terms of service and privacy policies.

 

SECTION 4 - ACCESS AND USE RESTRICTIONS

 

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). You must not transmit any worms or viruses or any code of a destructive nature. Further, you may not:

a)     copy, distribute, share, publish, use, store, or prepare derivative works from any content on the site covered by any copyrights, trademark, patent, or other intellectual property right belonging to us or a third party, except with prior express permission of us or the entity holding the rights to license such use;

b)    access, search, collect information from, or otherwise interact with the site by “scraping,” “crawling,” or “spidering” the site;

c)     use, display, mirror, or frame the site, or any feature, functionality, tool, or content of the site, our name, any of our trademarks, logos, or other proprietary information;

d)    interfere with, disrupt, damage, or compromise the site or our systems or the access of any user, host, or network in any way;

e)     attempt to decipher, decompile, disassemble, or reverse engineer any of the code or software used to provide the site;

f)     solicit others to perform or participate in any unlawful acts;

g)    violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances;

h)    harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;

i)      submit false or misleading information;

j)      collect or track the personal information of others;

k)    spam, phish, pharm, or pretext;

l)      use the site for any obscene or immoral purpose;

m)   interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet;

n)    otherwise abuse the site or breach these Terms; or

o)    attempt to do any of the foregoing, or advocate, encourage, or assist any third party in doing any of the foregoing.

 

A breach or violation of any of these Terms will result in an immediate termination of your Services. We reserve the right to investigate and prosecute violations of any and all reports, complaints, and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law, and to monitor and/or disable access to or use of the site by any user. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

 

SECTION 5 - GENERAL SALES TERMS

 

We reserve the right to refuse service to anyone for any reason at any time, in our sole discretion, and without liability to you or any third party. We accept various methods of payment as indicated on the site at the time of purchase, which may include credit cards, debit cards. We use payment processors to process transactions on our site. By providing payment information, you represent and warrant that you are authorized to use the designated payment method and authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order, including any applicable taxes, shipping, and handling charges.

 

SECTION 6 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

 

We are not responsible if information made available on this site is not accurate, complete, or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the material on this site is at your own risk. This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your sole responsibility to monitor changes to our site. We do not guarantee the accuracy of any information provided by third parties that may appear on or be accessible through the site.

SECTION 7 - MODIFICATIONS TO THE SERVICE AND PRICES

 

Prices for our products are subject to change without notice. All prices are displayed in U.S. dollars unless otherwise indicated. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) temporarily or permanently, without notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service. In the event of a pricing error or misprint on the site, we reserve the right to refuse or cancel any orders placed for products listed at the incorrect price, whether or not the order has been confirmed and your payment method charged. If your payment method has already been charged for the purchase and your order is canceled due to a pricing error, we will issue a refund to your original payment method in the amount of the incorrect price.

 

SECTION 8 - PRODUCTS OR SERVICES

 

Certain products or Services may be available exclusively online through the website. These products or Services may have limited quantities and are subject to return or exchange only according to our Return Policy. All product descriptions, specifications, and images are approximate and provided for convenience only. We have made every effort to display as accurately as possible the colors and images of our products that appear at the store; however, we cannot guarantee that your computer monitor's display of any color will be accurate. Product packaging may vary from what is shown on the site. We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or Services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time without liability. Any offer for any product or service made on this site is void where prohibited. We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected. All sales are final except as expressly provided in our Return Policy.

 

SECTION 9 - ACCURACY OF BILLING AND ACCOUNT INFORMATION; ORDER ACCEPTANCE

 

We reserve the right to refuse any order you place with us for any reason. Your receipt of an order confirmation does not constitute our acceptance of your order; rather, it merely confirms that we have received your order. We reserve the right to accept or decline your order, in whole or in part, at any time prior to shipment, in our sole discretion. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors, or that otherwise appear to be for commercial resale purposes. You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. You are responsible for all orders placed under your account. For more detail, please review our Returns Policy.

 

SECTION 10 - DELIVERY OF GOODS

 

Upon successful completion of your order and payment, we will arrange for the shipment and delivery of the purchased products to the shipping address you provide at checkout. Delivery times and shipping options will be provided at the time of purchase and may vary depending on your location and the shipping method selected. Title and risk of loss for the products pass to you upon our delivery of the products to the carrier. We are not responsible for delays or failures in delivery due to circumstances beyond our reasonable control. For more information regarding shipping, delivery, and returns, please refer to our Returns Policy.

 

SECTION 11 - OPTIONAL TOOLS

 

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). We may also, in the future, offer new Services and/or features through the website (including, the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.

 

SECTION 12 - THIRD-PARTY LINKS

 

Certain content, products and Services available via our Service may include materials from third-parties. Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.

 

We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

 

SECTION 13 - SMS TEXT MESSAGES AND MARKETING COMMUNICATION CONSENT

 

By providing your phone number and opting in to receive marketing messages, including via SMS or text messages, from us, you expressly consent to receive marketing and non-marketing calls and text messages from or on behalf of Company, including those made using an automatic telephone dialing system (auto-dialer), prerecorded or artificial voice messages, or other automated technology, at the phone number you provide. Your consent to receive such messages is not a condition of any purchase. Message and data rates may apply. The frequency of messages may vary. You may opt out of receiving SMS or text messages at any time by replying STOP to any message you receive from us, or by following the instructions provided in the message. For help or more information, reply HELP or contact our customer service. For more information about how we use your telephone number and your rights and choices, please review our Privacy Policy. To access our Privacy Policy, please click here.

 

SECTION 14 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

 

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

 

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

 

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

 

SECTION 15 - PERSONAL INFORMATION

We process information in accordance with our Privacy Policy. To view our Privacy Policy, please click here.

 

SECTION 16 - ERRORS, INACCURACIES AND OMISSIONS

 

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

 

SECTION 17 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT. YOU ACKNOWLEDGE AND AGREE THAT ACCESSING AND USING THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU HEREBY RELEASE US AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE WEBSITE. IN NO EVENT WILL WE BE LIABLE FOR ANY (A) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR (B) DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF OPPORTUNITY, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.  IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO TEN U.S. DOLLARS (US$10).

 

To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold us and our affiliates, licensors, and service providers harmless from and against any claims, liabilities, damages, losses, costs, and expenses, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential, or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with your access to or use of the site, your breach of the Terms, or your gross negligence or willful misconduct.

 

SECTION 18 – INDEMNIFICATION

 

You agree to indemnify, defend and hold harmless Shift Robotics and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

 

SECTION 19 - DISPUTE RESOLUTION

 

Disputes. The terms of this Section 19 shall apply to all Disputes between you and us. For the purposes of this Section, “Dispute” shall mean any dispute, claim, controversy or action between you and us arising under or relating to your use of the Services, this Agreement, or any other transaction involving you and us, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND WE AGREE THAT “DISPUTE” AS DEFINED IN THIS AGREEMENT SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY US FOR: (1) TRADE SECRET MISAPPROPRIATION; (2) PATENT INFRINGEMENT; (3) COPYRIGHT INFRINGEMENT OR MISUSE; (4) TRADEMARK INFRINGEMENT OR DILUTION; OR (5) ANY OTHER CLAIM FOR WHICH INJUNCTIVE RELIEF IS APPROPRIATE IN OUR SOLE DISCRETION.

 

Opt-Out. You may elect to opt-out (exclude yourself) from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this section by sending a written letter to us at the address provided in the Contact Information section within thirty (30) calendar days of your initial agreement to this Agreement (including your first use of the Services) that specifies: (1) your name; (2) your mailing address; and (3) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of this Agreement shall continue to apply.

 

Dispute Notice. In the event of a Dispute, you or we must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to us must be addressed to the address provided in the Contact Information section (“Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you, or via email if we do not have any such address on file. If we and you do not reach an agreement to resolve the Dispute within sixty (60) calendar days after the Dispute Notice is received, you or we may proceed to mediation as articulated in this Section. You and we will work in good faith to schedule the informal conference at a mutually convenient time. If you are represented by counsel, your counsel may participate in the informal dispute resolution conference, but you shall also fully participate in such discussions. The arbitrator may dismiss any arbitration brought without first proceeding through the informal dispute resolution conference.

 

Mediation. In the event the parties cannot resolve the Dispute via the informal dispute resolution conference, the Dispute must first be submitted to non-binding mediation before a neutral third party before it may proceed to arbitration. Selecting the mediator, the appropriate terms for mediation (including costs), and a date for mediation shall be negotiated in good faith between the parties. The administrative fees associated with mediation shall be negotiated between the parties, but you will not be required to pay any such fees that exceed those fees you would be required to pay if proceeding in a court of law. Such fees also will not include attorneys’ fees and costs, if any, unless awarded during mediation. If the parties cannot agree to appropriate terms concerning mediation, the parties shall be entitled to proceed with an arbitration proceeding pursuant to this section.

 

Binding Arbitration. In the event mediation is unsuccessful, you and we agree: (1) to arbitrate all Disputes between you and us pursuant to the provision of this Agreement; (2) this Agreement memorializes a transaction in interstate commerce; (3) the Federal Arbitration Act (9 U.S.C. § 1, et seq.) governs the interpretation and enforcement of this Section (notwithstanding the choice-of-law provision contained herein); and (4) this Section shall survive termination of this Agreement.

 

Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state, municipality, province or territory if the action is within that court’s jurisdiction and is pending only in that court.

 

WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AND WE AGREE THAT NO DISPUTE SHALL PROCEED BY WAY OF CLASS ARBITRATION WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES.

 

MASS ACTION WAIVER. You and we agree that any Dispute between you and us shall be resolved only in an individual arbitration pursuant to this Section. You and we expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a Mass Action, as defined below, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any Mass Action to award relief to anyone but the individual in arbitration, unless otherwise provided in this section. “Mass Action” includes instances in which you or we are represented by a law firm or collection of law firms that has filed 25 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on your or our behalf, and the law firm or collection of law firms seek to simultaneously or collectively administer and/or arbitrate all arbitration demands in the aggregate. Notwithstanding this section, nothing prevents you or us from participating in a mass settlement of claims.

 

Special Master Appointment. In the event there is a dispute concerning the Mass Action Waiver, the parties agree to resolve such dispute before a Special Master appointed by the arbitration provider and agreed to between the parties. The Special Master shall have authority to resolve disputes concerning: (i) filing fees owed with respect to any Mass Action; (ii) any dispute regarding whether this arbitration agreement has been followed; (iii) whether claimants are barred from proceeding with a Mass Action; (iv) any dispute relating to the representation of the same claimant by multiple law firms; (v) any dispute regarding discovery common to all claims; and (vi) any disputes regarding legal or factual issues common to all claims. If the Special Master determines you violated the Mass Action Waiver, either party shall have the opportunity to opt-out of arbitration within 30 days of the arbitrator’s decision. You may opt-out of arbitration by providing written notice to the email address provided in the Contact Information section. We may opt-out of arbitration by sending written notice of our intention to the arbitration provider and to you or your attorney, agent, or representative. For the avoidance of doubt, the ability to opt-out of arbitration at this stage in the proceedings only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver. If the parties proceed with arbitration, the parties agree to the batching procedures below.

 

Batching. After proceedings before the Special Master have concluded, and to the extent any Mass Actions are permitted to proceed, the parties agree that Mass Actions will be batched into groups of no more than 200 demands per batch by state of residence (with any remaining demands batched into a single group). The parties shall inform the arbitrator of the batches and their composition within 14 calendar days of the conclusion of proceedings before the Special Master. The arbitration provider shall treat each batch of claims as one case, with each case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents and filing fees per batch. The parties shall randomly assign sequential numbers to each batch, and only one batch shall proceed to arbitration at a time in the order of the random sequential numbers. A separate arbitrator will be appointed to, and administrative and filing fees assessed for, each batch as the batch proceeds to arbitration.

 

Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be administered by the American Arbitration Association (AAA) and be governed by the applicable AAA rules to the Dispute; except AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the AAA rules and the rules set forth in this Agreement, the rules set forth in this Agreement shall govern. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state, provincial, territorial, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

 

Hearing Format. Unless otherwise agreed, the arbitration shall take place in Austin, Texas, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.

 

Arbitration Fees. The AAA rules will govern payment of filing fees and the AAA’s arbitrator’s fees and expenses. In addition, if the dispute involves less than $75,000, and before initiating arbitration you complied with all pre-arbitration requirements in this Section 19, then we will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and any reasonable expenses (not including any attorney fees or expert witness fees or related costs that your attorney accrued in connection with your individual arbitration).

 

Amendments to this Section. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any material amendments to the dispute resolution procedure and class action waiver provisions in this Agreement, we will notify you and you will have thirty (30) calendar days from the date of notice to affirmatively opt-out of any such amendments by sending a written letter to the Notice Address that specifies: (1) your name; (2) your mailing address; and (3) your request to opt-out of such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in this Agreement, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.

 

Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void.  The terms of this Section shall otherwise survive any termination of this Agreement.

 

Exclusive Venue for Other Controversies. We and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the state or federal courts located within Travis County, Texas, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.

 

SECTION 20 – SEVERABILITY

 

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

 

SECTION 21 – TERMINATION

 

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

 

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

 

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

 

SECTION 22 - ENTIRE AGREEMENT

 

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

 

These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

 

SECTION 23 - GOVERNING LAW

 

These Terms of Service, their interpretation, the arbitration agreement in the Dispute Resolution section, and any subject matter related thereto, shall be governed by and construed in accordance with the laws of Texas.

 

SECTION 24 - CONTACT INFORMATION

 

Questions about the Terms of Service should be sent to us at support@shiftrobotics.io.

 

Address: 2600 McHale Ct., STE 145, Austin, TX, 78758.

 

SECTION 25 – CALIFORNIA DISCLOSURE

 

Under California Civil Code Section 1789.3, California residents are entitled to the following disclosure:

 

These Services are provided by Shift Robotics with the contact information set forth in Section 24 above. If you are a California resident, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.