Software as a Service Agreement
BY CLICKING THE “ACCEPT” BUTTON, OR USING SHIFTBOARD, INC.’S (“SHIFTBOARD”) SERVICE OFFERING, THE INDIVIDUAL OR ENTITY LICENSING THE OFFERING (“CUSTOMER”) REPRESENTS AND WARRANTS THAT (1) IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT (“AGREEMENT”), (2) IS OF LEGAL AGE TO FORM A BINDING AGREEMENT WITH SHIFTBOARD, AND (3) HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SHIFTBOARD SERVICE.
Shiftboard provides a cloud-based workforce management and scheduling software solution (the “Shiftboard Service”), and will provide Customer access to and use of Shiftboard Service in accordance with the terms of this Agreement and any mutually agreed upon quote identifying the services to be made available by Shiftboard pursuant to this Agreement and the fees incurred for such services (an “Order”). In the event of any conflict between this Agreement and an Order, the terms of the Order will control solely to the extent of such conflict. Shiftboard will use commercially reasonable efforts to provide the Shiftboard Service in accordance with Shiftboard’s historic uptimes.
2. USE OF SHIFTBOARD SERVICE.
2.1 Paid Services. If Customer has purchased Shiftboard Services, the terms of this Section 2.1 will apply:
- (a) Use. Subject to the terms and conditions of this Agreement, Shiftboard hereby grants Customer during the Term (as defined below), a non-exclusive, non-transferable, worldwide, right to access and use the Shiftboard Service for Customer’s internal business purposes. Customer may permit staff for which applicable fees have been paid and who have been identified on an Order as a member, and/or who have used the Shiftboard Service’s timecard feature (each, a “Member”) to access and use the Shiftboard Service in accordance with the terms herein. Customer is responsible for all acts and omissions of its Members.
- (b) Subscription Plans. Customer’s subscription plan for the Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Sales Order during the Service subscription term. Customer is not entitled to any refund of fees paid or relief from fees due if the Services Customer actually uses are less than the Services or subscription metrics Customer ordered, and Customer may not carry over any unused Services or subscription metrics to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must notify Shiftboard at least 30 days’ before the start of the Renewal Term for the applicable Service; the reduction will be effective at the start of the Renewal Term.
- (c) Training. Shiftboard will provide remote phone and web-based training related to the use of the Shiftboard Service to the extent set forth in an Order, to those individuals identified in the applicable Order (“Administrators”). Additional training services are subject to Shiftboard’s then-current fees. Customer is responsible for making a good-faith effort to attend all training sessions established by Shiftboard.
- (d) Phone and Email Support. Shiftboard will, during the Term, provide phone, email or chat support to Administrators, Monday through Friday, 6am – 6:00pm PST, U.S. holidays excluded. Shiftboard will have no support obligations with respect to non-Administrators.
- (e) Custom Development and Enhancement Request. This Agreement does not include any programming services for custom development or modifications. Such work, if negotiated and agreed to between Shiftboard and Customer, shall be the subject of a separate agreement for development services. As such, Shiftboard shall have complete control of the design and development of the Services, including with respect to any enhancements and modifications. Therefore, Shiftboard has the right, and sole discretion, to reject any request for enhancement or modification to the Services by Customer.
- 2.2 Limitations. Customer shall not, and shall not permit any Member or other party to: (a) reverse engineer, disassemble or decompile any component of the Shiftboard Service; (c) interfere in any manner with the operation of the Shiftboard Service or the hardware and network used to operate the Shiftboard Service; or (c) sublicense any of Customer’s rights under this Agreement, or otherwise use the Shiftboard Service for the benefit of a third party or to operate a service bureau.
- 3.1 Shiftboard Technology. Customer acknowledges that Shiftboard retains all right, title and interest in and to the Shiftboard Service, and all Shiftboard proprietary information and technology used by Shiftboard or provided to Customer in connection with the Shiftboard Service (the “Shiftboard Technology”), is protected by intellectual property rights owned by or licensed to Shiftboard. Shiftboard may use any feedback or comments provided by Customer for any purpose.
- 3.2 Customer Data. Shiftboard acknowledges and agrees that the data, information, content and materials uploaded or otherwise made available by or on Customer’s behalf to the Shiftboard Service (“Customer Data”) is the exclusive property of Customer. Customer hereby grants to Shiftboard the rights (a) to use the Customer Data as necessary for purposes of providing the Shiftboard Service and Support to Customer and (b) to use the Customer trademarks, service marks, and logos as required to provide the Shiftboard Service to Customer. Customer acknowledges and agrees that Shiftboard may use Customer Data on an aggregated and anonymized basis to improve the Shiftboard Service. Customer represents and warrants that (a) Customer has all rights necessary to grant Shiftboard the rights set forth herein, and Shiftboard’s exercise of such rights will not require Shiftboard to provide any notices or obtain any consents of any other person, (b) the Customer Data, and Customer’s provision, delivery or other disclosure of Customer Data to Shiftboard does not and will not violate any applicable law, rule or regulation; and (c) the Customer Data does not infringe upon, misappropriate, or otherwise violate any third party’s intellectual property, publicity or privacy rights.
4. FEES AND PAYMENT OF SERVICES
- 4.1 Fees and Payment. Customer shall pay Shiftboard the fees set forth in the Order (“Subscription Fees”) within thirty (30) days of Shiftboard’s invoice, unless otherwise agreed in writing. Any subscription fees paid by Customer are non-refundable. Billing will commence on the date the Order has been agreed to (“Commencement Date“). Upon any Renewal Term (as defined below), Shiftboard may increase pricing for services. Any such pricing increase shall not exceed ten percent (10%) over the pricing for the same usage of Services in the immediately prior subscription term. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. Shiftboard may suspend its performance hereunder until all past-due amounts are paid in full. A reinstatement fee of $250 per Customer site will be charged to reactivate a suspended site due to non-payment. All fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Shiftboard’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of access to the Shiftboard Service to Customer.
- 4.2 Overage Fees. The Shiftboard Services may be subject to usage limitations as set forth in an Order (“Usage Limits”). If the Customer exceeds their Usage Limits, Customer will pay the overage fees set forth in the Order (“Overage Fees”). All Overage Fees will be billed in arrears on the first day of each month following the month of usage. In the event that Customer wishes to increase their Usage Limits beyond the maximum number for which fees have been paid, Customer shall be required to pay additional fees as defined through an Order.
- 4.3 Expenses. Customer shall reimburse Shiftboard for all additional expenses incurred outside of the fees specified above that are pre-approved by Customer, including Shiftboard’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder.
5. TERM AND TERMINATION
- 5.1 Term. This Agreement commences on the date you initially accept this Agreement in accordance with the terms of the preamble (the “Effective Date”) and remains in effect until all Orders have expired or have been terminated. Unless otherwise set forth in the applicable Order, each Order shall commence on the effective date of such Order and continue for a period of one (1) year (the “Initial Term”). Each Order will automatically renew for successive one year periods (each, a “Renewal Term” and together with the Initial Term, such Order’s “Term”), unless either party provides written notice to the other of its intention not to renew at least fifteen (15) days prior to the expiration of the then-current term. All requests for non-renewal must be submitted in writing to email@example.com.
- 5.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- 5.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, shall immediately terminate, excluding Shiftboard’s rights to use data on an aggregated and anonymized basis under Section 3.2; (b) within thirty (30) days after the Effective Date of termination, each party shall comply with the obligations to remove all Confidential Information of the other party, as set forth in the section titled Confidentiality; (c) within thirty (30) days after the Effective Date of termination, Shiftboard shall discontinue all use of Customer Data and destroy all copies of Customer Data in its possession; and (d) customer will remit payment for any outstanding fees for Shiftboard services performance prior to the effective cancellation. Shiftboard’s rights to use aggregated and anonymized data, and the sections and subsections titled Disclaimers, Limitation of Liability, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
SHIFTBOARD MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SHIFTBOARD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SHIFTBOARD SERVICE AND SHIFTBOARD SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER SHIFTBOARD NOR ITS SUPPLIERS SHALL BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SHIFTBOARD’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SHIFTBOARD SERVICE OR OTHER PRODUCTS OR SERVICES HEREUNDER.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF SHIFTBOARD ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO SHIFTBOARD DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
8. DATA SECURITY.
Shiftboard will use commercially reasonable efforts to protect Customer Data against any unauthorized access, disclosure or use, and will promptly notify Customer of any known or suspect breaches involving Customer Data. Customer acknowledges and agrees that it is solely responsible for (a) the accuracy, quality, integrity and legality of all Customer Data, (b) all changes, additions to, or deletions of Customer Data that are made using Customer’s passwords and other login credentials, (c) the security of all passwords and other login information required in order the access the Shiftboard Service, and (d) the security of all Customer Data sent to Shiftboard via unsecure or unencrypted methods. In the event Customer sends Customer Data via unsecured channels, Customer hereby consents to Shiftboard sending the Customer Data via the same channels. Customer will immediately notify Shiftboard if it becomes aware of any unauthorized access, disclosure or use of Customer’s passwords.
9.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Shiftboard Service, and all enhancements and improvements thereto will be considered Confidential Information of Shiftboard.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
10. DATA PROCESSING (EU CUSTOMERS ONLY)
- 10.1 Customer represents, warrants and undertakes that it has complied, and shall comply, with its obligations under Data Protection Laws, including, without limitation, obtaining valid and effective consent from Data Subjects or having an alternative legal basis, for the transfer of Personal Data to Shiftboard and the processing and storage of Personal Data by Shiftboard envisaged by the terms of this Agreement.
- 10.2 Customer agrees to indemnify, keep indemnified and defend at its own expense, Shiftboard against all costs, claims, damages or expenses incurred by Shiftboard or for which Shiftboard may become liable (including, without limitation, any claim brought by a Data Subject against, or fine imposed by a regulator upon, Shiftboard) due to: (i) Customer’s breach of any representation, warranty or undertaking contained in Section 10.1; and (ii) any failure by Customer, its employees, or its agents to comply with Data Protection Laws.
- 10.3 In respect of Customer Personal Data, Customer and Shiftboard acknowledge that Shiftboard acts as a Data Processor and Customer acts as the Data Controller. Shiftboard shall comply with all applicable Data Protection Laws in processing Customer Personal Data and not Process Customer Personal Data other than on Customer’s instructions or as required by applicable laws. Customer instructs Shiftboard to process Customer Personal Data as necessary to provide the Shiftboard Service to Customer and to perform Shiftboard’s obligations and exercise Shiftboard’s rights under this Agreement. Where Shiftboard receives an instruction from Customer that, in its reasonable opinion, infringes the GDPR, Shiftboard shall inform Customer.
- 10.4 Customer represents and warrants on an ongoing basis that, for the purposes of Article 6 of the GDPR, there is, and will be throughout the term of this Agreement, a valid legal basis for the processing by Shiftboard of Customer Personal Data in accordance with this Agreement.
- 10.5 Shiftboard shall take reasonable steps to ensure the reliability of its personnel who may process Customer Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
- 10.6 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk (which may be of varying likelihood and severity) for the rights and freedoms of natural persons, Shiftboard shall in relation to Customer Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Shiftboard shall take account in particular of the risks presented by the processing, in particular from a Personal Data Breach.
- 10.7 Customer authorises Shiftboard to appoint subprocessors in accordance with this Section 10.7. Shiftboard may continue to use those subprocessors already engaged by Shiftboard as at the date of this Agreement. Shiftboard shall give Customer prior written notice of the appointment of any new subprocessor, including reasonable details of the processing to be undertaken by the subprocessor. If, within 30 days of receipt of that notice, Customer notifies Shiftboard in writing of any objections (on reasonable grounds) to the proposed appointment, Shiftboard shall use reasonable efforts to make available a commercially reasonable change in the provision of the Shiftboard Service which avoids the use of that proposed subprocessor. Where such a change cannot be made within 30 days from Shiftboard’s receipt of Customer’s notice, or no commercially reasonable change is available, or Customer declines to bear the cost of the proposed change, notwithstanding anything in this Agreement, either party may by written notice to the other party with immediate effect terminate this Agreement either in whole or to the extent that it relates to the Shiftboard Service which require the use of the proposed subprocessor. With respect to each subprocessor, Shiftboard shall ensure that the arrangement between Shiftboard and the subprocessor is governed by a written contract including terms which offer at least an equivalent level of protection for Customer Personal Data as those set out in this Agreement.
- 10.8 Taking into account the nature of the processing, Shiftboard shall provide Customer with such assistance as may be reasonably necessary and technically possible in the circumstances, to assist Customer in fulfilling its obligation to respond to Data Subjects’ requests to exercise their rights under the GDPR. Shiftboard shall promptly notify Customer if Shiftboard receives such a Request and ensure that Shiftboard does not respond to any such request except on the documented instructions of Customer (and in such circumstances, at Customer’s cost) or as required by applicable laws.
- 10.9 Shiftboard shall notify Customer without undue delay upon Shiftboard becoming aware of a personal data breach affecting Customer Personal Data, providing Customer with sufficient information (insofar as such information is, at such time, within Shiftboard’s possession) to allow Customer to meet any obligations under Data Protection Laws to report or inform the Personal Data Breach to affected Data Subjects or the relevant supervisory authority(ies) (as may be determined in accordance with the Data Protection Laws). Shiftboard shall at Customer’s sole cost and expense co-operate with Customer and take such reasonable commercial steps as may be directed by Customer to assist in the investigation, mitigation and remediation of each such personal data breach.
- 10.10 Shiftboard shall provide reasonable assistance to Customer, at Customer’s cost, with any data protection impact assessments, and prior consultations with supervisory authorities, which Customer reasonably considers to be required of Customer by Article 35 or Article 36 of the GDPR, in each case solely in relation to processing of Customer Personal Data by, and taking into account the nature of the processing by, and information available to, Shiftboard.
- 10.11 Upon the date of cessation of the Shiftboard Service (the “Cessation Date”), Shiftboard shall immediately cease all processing of the Customer Personal Data for any purpose other than for storage. To the extent technically possible in the circumstances (as determined in Shiftboard’s sole discretion), on written request to Shiftboard (to be made no later than 30 days after the Cessation Date), Shiftboard shall return a complete copy of all Customer Personal Data within Shiftboard’s possession to Customer, promptly following which Shiftboard shall delete all other copies of such Customer Personal Data or delete all Customer Personal Data then within Shiftboard’s possession to the fullest extent technically possible in the circumstances.
- 10.12 Shiftboard and any subprocessor may retain Customer Personal Data to the extent required by applicable law and only to the extent and for such period as required by applicable law and always provided that Shiftboard shall ensure the confidentiality of all such Customer Personal Data and that such Customer Personal Data is only processed as necessary for the purpose(s) specified in the applicable law requiring its storage and for no other purpose.
- (a)“Data Protection Laws” means any data protection, privacy or similar laws or regulations anywhere in the world relating inter alia to the processing or other use of personal data, including the GDPR.
- (b)“Data Controller” shall have (until 24 May 2018) the meaning prescribed under the Directive and (from 25 May 2018) the meaning given to it under the GDPR.
- (c) “Data Processor” shall have (until 24 May 2018) the meaning prescribed under the Directive and (from 25 May 2018) the meaning given to it under the GDPR.
- (d) “Data Subject” shall have (until 24 May 2018) the meaning prescribed under the Directive and (from 25 May 2018) the meaning given to it under the GDPR.
- (e) “Directive” means European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as amended or superseded from time to time.
- (f) “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data an on the free movement of such data, and to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom.
- (g) “Personal Data” shall have (until 24 May 2018) the meaning prescribed under the Directive and (from 25 May 2018) the meaning given to it under the GDPR and “Customer Personal Data” means such Customer Data that is Personal Data.
- 11.1 By Shiftboard. Shiftboard will defend at its expense any suit brought against Customer, and will pay any settlement Shiftboard makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Shiftboard Service infringes, misappropriates or violates any U.S. intellectual property rights. If any portion of the Shiftboard Service becomes, or in Shiftboard’s opinion is likely to become, the subject of a claim of infringement, Shiftboard may, at Shiftboard’s option: (a) procure for Customer the right to continue using the Shiftboard Service; (b) replace the Shiftboard Service with non-infringing software or services which do not materially impair the functionality of the Shiftboard Service; (c) modify the Shiftboard Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Shiftboard for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Shiftboard Service. Notwithstanding the foregoing, Shiftboard shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Shiftboard Service in combination with other products, equipment, software or data not supplied by Shiftboard; or (y) any modification of the Shiftboard Service by any person other than Shiftboard or its authorized agents. This subsection states the sole and exclusive remedy of Customer and the entire liability of Shiftboard, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- 11.2 By Customer. Customer will defend at its expense any suit brought against Shiftboard, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer’s breach or alleged breach of the subsections titled Customer Data or Data Security. This subsection states the sole and exclusive remedy of Shiftboard and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
- 11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- 12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Washington, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Shiftboard’s principal place of business is located for any lawsuit filed there against Customer by Shiftboard arising from or related to this Agreement.
- 12.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any other provision.
- 12.3 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 12.4 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
- 12.5 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- 12.6 Independent Contractors. Customer’s relationship to Shiftboard is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Shiftboard.
- 12.7 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing, including electronic submissions, to the other party at the address listed on most recent Order.
- 12.8 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Shiftboard.