Please read these Terms of Service (this “Agreement”) carefully before continuing with the products installed. In this Agreement, unless the content otherwise requires the capitalized terms used herein shall be defined as set forth in paragraph 1 of this Agreement.
This Agreement, as well as any updates hereof, constitute a legal Agreement between You and Shift Markets Group Inc. (“Shift”) and govern the use of the Product on any device where it shall be installed, either by You or third parties.
You can accept this Agreement by clicking on the “Continue”, “Accept” or similar icon or by using the relevant link and/or using the Product.
Your agreement with Shift may also include Additional Terms (as defined below). The Additional Terms shall include, but not limited to, the terms and conditions set forth in this Agreement.
For the effective use of the Product, its components, Software, online services and Shift’s Website, You must accept the applicable Additional Terms. You may accept the Additional Terms by clicking to accept or agree where this option is made available to You or as may otherwise be designated or by using the Product, Product components, Software, online services and the Website of Shift whereby You agree and acknowledge that by such use You accept the applicable terms.
You acknowledge and agree that by accepting the terms and conditions of this Agreement, as well as the Additional Terms, You enter into a legally binding agreement. In the case of any conflict between the Additional Terms and this Agreement, the Additional Terms shall prevail with respect to the relevant Service offered by Shift We recommend that You print and keep a copy of this Agreement for your records.
You hereby consent to the use of electronic communication in order to enter into contracts, place orders and create other records, as well as to the electronic delivery of notices, policies, and records of transactions initiated or completed via the Product.
You hereby waive any rights or requirements under the laws or regulations of any jurisdiction which require an original non-electronic signature or delivery or retention of non-electronic records, to the extent permitted by applicable mandatory law.
If You are a resident of a jurisdiction where the download or use of the Product is prohibited by law in such jurisdiction, do not install or use it.
1. Terms and definitions
1.1. For the purposes of this Agreement, the following terms shall have the meaning as specified below:
Product(s): means, but is not limited to, the various trading technologies and customer management systems licensed, owned, or utilized by Shift for use on various computers, systems, or devices and with the Software, or software of your choosing, as applicable. In addition to its updates, upgrades, revisions, and new versions, the Product(s) includes, but is not limited to the following components:
- Network protocols used to secure network protocols of data transmission designed for interaction between the Product and the Software, as well as online services and Shift’s Websites;Program Interface that allows the end user to interact with the Product;
- Shift’s proprietary trading and customer management technology; and
- Any other system or program used in the furtherance of the functionality of the Product(s).
Documentation is any documentation published online or otherwise provided by Shift including, but not limited to, CHM files and related file types including user manuals, operating manuals, and other instructions, specifications, documents, and materials for testing, operation, or use thereof installed together with the Product or downloaded in the course of its use.
Software: means the computer software owned, licensed, or utilized by Shift and related documentation and any updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications, related subsystems, parts, services, and components thereof made or furnished by Shift. This includes but is not limited to, the server and customer components of the trading platform, the relevant secure network protocols of data transmission, databases, user interface of the software, documentation, the Product and components thereof, as well as online services and Shift’s Websites associated with the Software.
Agreement: means this Agreement, as well as updated, modified and/or amended future versions hereof as now or thereafter in effect.
Effective Date: means the date on which this Agreement is entered into by clicking on the “Continue”, “Accept” or a similar icon in accordance with the procedure described above or upon use of the trading platform by You, whichever occurs first.
Additional Terms: means the terms and conditions and policies applicable to Your use of the Shift’s Software, Products and Website of Shift, published or declared in addition to this Agreement.
Shift: means Shift Markets Group Inc. (formerly known as Shift Forex, LLC) a technology development company, with registered address at 295 Madison Avenue, New York City, New York, USA incorporated under the laws of the state of Delaware, USA.
Affiliate: means any corporation, company or other entity that directly or indirectly controls the operation of Shift Markets Group Inc., is controlled by Shift Markets Group Inc. or that is together with Shift Markets Group Inc. controlled by third parties. For the purposes of this document, “to control” and be “controlled by” shall mean the direct or indirect ownership of more than 50% (Fifty percent) of the issued and outstanding ordinary shares of a corporation, company or another entity.
Content: means any and all content, consisting of text, sounds, pictures, photos, video and/or any type of information or communications.
IP Rights: means patents, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how, trade secrets and confidential information; all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and applications, pending applications extensions and renewals in relation to any such rights.
Shift’s Online Materials: means Content available for download on Shift Website and in Product, as well as any amendments thereto which Shift may make at its sole discretion.
Shift’s Promotional Materials: means any and all trademarks, names, brands, signs, logos, banners, and any other materials, in whatever form, owned and/or used by Shift for the promotion of the company, its products, activities, and services.
Shift’s Staff: means the officers, directors, employees and agents of Shift or its Affiliates, as well as any other persons hired by Shift or its Affiliates.
Shift’s Website: means any and all elements, Contents and the ‘look and feel’ of the website available under the URL, Shiftmarkets.com – among other URLs, from which website the Shift’s Software can be downloaded.
User Account: means any account with Login and Password that You create for the use of Shift’s Software.
Login: means the identification code, which, in combination with the Password, gives You access to Your User Account.
Password: means the code You selected, which, in combination with the Login, gives You access to Your User Account.
You: means You as a user of the Shift’s Software (‘Your’ and ‘Yours’ shall be construed accordingly).
1.2. Words used in singular form include the plural, and vice versa, as appropriate.
1.3. Any words following the terms (in any form) “including”, “among other things”, “in particular” and similar expressions shall be construed as illustrative and not limiting the meaning of the words preceding those terms.
2. License and restrictions
2.1. License. Subject to the terms and conditions of this Agreement, Shift hereby grants You a limited, individual, non-exclusive, simple, non-sublicensable, non-assignable, non-transferable, free of charge license to download, install and use the Software with the use of Shift’s Product on Your desktop computer.
This license does not grant You any right to any version enhancement or update, or guarantee the continuous availability of the Product or Shift’s Software. Shift may revise, modify, cease to provide or require You to immediately cease using the Product, Shift’s Software or its functionalities or any part thereof, which may result in loss of compatibility, access to functionalities of the Shift’s Software or Shift network, system, Shift’s Website, servers, tools, information and databases, or other commercial activities related thereto, from time to time, without prior notice.
2.2. No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, or otherwise grant rights to use the Product or any part thereof to any third party.
2.3. No Modifications or Decompilation. You shall undertake not to knowingly or unknowingly cause, permit or authorize the modification, translation into other languages, creation of derivative products or services, reverse engineering, decompiling and/or disassembling of the Product and any components and parts thereof, gaining unauthorized access to databases and Network protocols and compromising the integrity of the Product’s security system and you will not modify the Product’s program Interface in any way. This clause 2.3 survives termination of this Agreement. You must comply with the requirements and specifications relating to Product’s design, use and presentation, at all times.
2.4. Third Parties. The Product may be incorporated into, and may incorporate itself, into other software and other technology owned or controlled by third parties. The use of any such third party software or technology incorporated into the Product shall fall under the scope of this Agreement.
Any and all third party software or technology that may be distributed with the Product shall be subject to You explicitly accepting a license agreement with that third party. You acknowledge and agree that You are not entering into a contractual relationship with Shift or its Affiliates regarding such third party software or technology and You will look solely to the applicable third party to enforce any of Your rights and not to Shift or its Affiliates.
Shift will remain fully liable for the acts of its employees, agents, or branches to which activities may be outsourced.
2.5. Exclusive Ownership. You acknowledge and agree that any and all IP Rights in the Product, Shift’s Software, Shift’s Website, Shift’s Online Materials and Shift’s Promotional Materials are and shall remain the exclusive property of Shift and/or its licensors. Nothing in this Agreement intends to transfer to You, or vest in You any such IP Rights.
You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is in violation of this Agreement, as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
All title and IP Rights in and to any third party content that is not contained in Shift’s Software, but may be accessed through the use of Shift’s Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This clause 2.5 survives termination of this Agreement.
2.6. No Removal of Notices. You agree that You shall not remove, obscure, make illegible or alter any notices or indications of the IP Rights held by Shift, whether such notice or indications are affixed on, contained in or otherwise connected to any existing materials.
2.7. You agree to maintain the value and reputation of Shift’s Software, the Product, Shift’s brand or name, to the best of Your abilities.
2.8. You shall not use the Products in any third-party Software Application that in Shift’s opinion is actually or potentially fraudulent or inappropriate or contrary to the provisions of this Agreement or any Additional Terms.
2.9. You agree that the services and products You provide using the Product, shall be provided in compliance with all applicable laws and regulations (including without limitation those relating to the protection of privacy and the processing of personal data or traffic data).
2.10. You agree that You are solely responsible for (and that Shift has no responsibility to You or to any third party for) any services and/or products You provide using the Products.
2.11. You hereby specifically acknowledge that Your rights to use the Products are strictly subject to full compliance with this Agreement, and any breach of any provision of this Agreement or any applicable Additional Terms shall give rise to automatic right of termination by Shift.
2.12. Nothing in this Agreement grants You any right to use Shift’s Promotional Materials, including without limitation Shift’s trademarks and logos. This clause 2.12 survives termination of this Agreement.
2.13. Shift reserves the right to amend, change, add or remove portions of the Agreement and Additional Terms at any time, on a general or individual basis, for any reason, by publishing the revised Agreement on Shift’s Website or by otherwise notifying You of the amendments. Such changes shall be effective immediately upon posting. Continued use of the Product shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement and Additional Terms. You must constantly monitor Shift’s Website to ensure that You are aware of any changes in the Agreement or any other applicable Additional Terms. In the event You do not agree with any changes in any applicable legal document, You must immediately cease any and all use of the Product and, where applicable, any and all use of the Shift’s Software.
2.14. You shall not reverse engineer, decompile, disassemble or otherwise modify Shift’s Software or engage in any other similar activity in relation to Shift’s Software or any part thereof, without the prior written consent of Shift and in accordance with the laws of the State of Delaware. Further, You shall undertake not to knowingly or unknowingly cause, permit or authorize the modification, translation into other languages, creation of derivative products or services, reverse engineering, decompiling and/or disassembling of Shift’s Software and any components and parts thereof, gaining unauthorized access to databases and Network protocols, compromising the integrity of the Product’s security system, gaining access and modifying of any License certificates and you shall not modify the program interface in any way. You shall comply with the requirements and specifications relating to design, use and presentation of the Shift’s Software, at all times.
2.15 You acknowledge and agree that use of the Products and Shift’s Software shall be at Your own risk and account. You agree, on demand, to indemnify, defend and hold Shift, its Affiliates and Staff harmless from and against any and all liability and costs (including reasonable attorneys’ fees) incurred by any such person, in connection with or arising out of: (a) the use of the Product or Shift’s Software, or (b) any breach or violation of the terms and conditions of this Agreement. This clause 2.15 survives termination of this Agreement.
2.16. In the event that You wish to use the Product in a manner other than as expressly set out in this Agreement, such use is strictly prohibited unless and until Shift grants You a specific license in writing.
2.17. IP Rights.
2.17.1. As between You and Shift, Shift and its licensors retain all the IP Rights in and to the Shift’s Software (including the Product) and any derivative works thereto created by or for Shift or its licensors. This clause 2.17.1 survives termination of this Agreement.
2.17.2. If You are an employee or director of a business and You use the Product on behalf of that business (the “Business”), You acknowledge and agree that: (i) by accepting this Agreement and using the Product, You do so on behalf of the Business and with the express authorization of the Business that You and the Business shall be bound by this Agreement in respect of the use of the Product; (ii) the license granted by Shift to use the Product is subject to obtaining all necessary consents, permissions and authority from the Business to act on its behalf according to this Agreement. You represent and warrant that You have obtained such consents, permission and authority to use the Product on behalf of the Business. If You do not have such authority, then You do not have a license to use the Product.
2.18. Utilization of Your mobile phone: Shift’s Software (including the Product) may utilize resources of Your mobile phone (or other applicable device). You are utilizing, including, but not limited to, CPU, memory and network connectivity for the limited purpose of providing the functionality of the Product and establishing connection with Shift’s Software. Shift will use its commercially reasonable efforts to protect the privacy and integrity of Your mobile phone resources and Your communications. However, You acknowledge and agree that Shift does not give any warranties in this respect.
2.19. Updates to and New Versions of the Product and Shift’s Software. Shift at its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Product and Shift’s Software. You acknowledge and agree that Shift has no obligation to make available to You any subsequent versions of the Product and Shift’s Software.
From time to time, the Software may download and install updates automatically. These updates are required to maintain software compatibility, provide security updates or debugging, or offer new features, functionality or versions. You agree to receive such updates from Shift in order to continue using the Product and Shift’s Software. You further agree that You may have to enter into a renewed version of this Agreement, in the event you download, install or use a new or updated version of the Product or Shift’s Software.
2.20. Suspension: Shift may, at its sole discretion and without prior notice, modify or discontinue or suspend Your ability to use the Product or any version of Shift’s Software or terminate the license granted to You under this Agreement, at any time, with immediate effect and without recourse to the courts, for the repair, improvement, and/or upgrade of Shift’s Software or for any other justifiable reason, including but not limited to, circumstances where You are found to be in breach of the terms and conditions, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
2.21. Lawful Purposes: You will use Shift’s Software only for lawful purposes. In this respect You shall not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You; (b) use any type of program codes that are designed to distort, delete, damage or compromise the integrity of Shift’s Software or the communication; (c) use or attempt to use Shift’s Software or Websites in violation of the applicable laws of the New York State; (d) use or distribute any material or content that is subject to a third party’s proprietary rights, unless You have a license or permission from the owner of such rights; (e) modify, translate into other languages, create derivative products or services, reverse engineer, decompile and/or disassemble Shift’s Software and/or any parts thereof, gain unauthorized access and compromise the integrity of databases, gain unauthorized access and compromise secure network protocols of data transmission, , compromise the integrity of Shift’s Software security system. This clause 2.21 survives the termination of this Agreement.
2.22. Password Security. To prevent any unauthorized use of your User Account, You must not share your Password with any third party.
If You suspect that your password is known to someone else, then You should change it immediately to protect your User Account.
2.23. The Products require an Internet connection for their functionality. You shall be responsible for any and all costs incurred by use of the Internet as a result of Your use of the Product or Shift’s Software.
2.24. Representations. You represent and warrant that You have the full and unencumbered rights, power and authority to enter into and comply with this Agreement. Furthermore, You represent and warrant that You shall meet Your obligations under this Agreement, as well as any and all laws, regulations and policies that may apply to the use of Shift’s Software, the Products and/or Shift’s Website, at all times.
2.25. NO WARRANTY; NO REGULATORY ADVICE. THE COMPANY AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER THE SERVICES, PROVIDED THAT THE COMPANY AND ITS REPRESENTATIVES AND AGENTS MAKE NO REPRESENTATIONS AND/OR WARRANTIES (AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY SERVICE AND/OR FOR ANY ADVICE OR SUGGESTIONS GIVEN IN CONNECTION WITH SUCH SERVICES. FOR THE AVOIDANCE OF ANY DOUBT, THE COMPANY AND ITS REPRESENTATIVES AND AGENTS ARE NOT PROVIDING ANY REGULATORY OR LEGAL ADVICE OR COUNSEL IN OR WITH RESPECT TO ANY JURISDICTION AND THE COMPANY AND ITS REPRESENTATIVES AND AGENTS ARE NOT LIABLE TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY FAILURE OF THE CUSTOMER TO COMPLY WITH ANY AND ALL LEGAL AND/OR REGULATORY REQUIREMENTS IN ANY JURISDICTION. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY RELIES UPON CERTAIN THIRD PARTIES IN ORDER TO PROVIDE CERTAIN SERVICES TO CUSTOMER. IN THE EVENT SUCH THIRD PARTIES DO NOT PROVIDE THE COMPANY WITH SUCH THIRD PARTY SERVICES AND THE COMPANY IS NOT ABLE TO PROVIDE CERTAIN SERVICES TO CUSTOMER AS A RESULT THEREOF, THE COMPANY SHALL HAVE NO LIABILITY TO THE CUSTOMER AND THE CUSTOMER SHALL HAVE NO RECOURSE AGAINST THE COMPANY.
2.26.1 INDEMNIFICATION. YOU AGREE TO FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND SHIFT, ITS AFFILIATES AND SHIFT’S STAFF FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, DAMAGES, LIABILITIES, LOSSES, SETTLEMENTS, JUDGEMENTS, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES AND COSTS , WHETHER OR NOT INVOLVING A THIRD PARTY CLAIM, WHICH ARISES OUT OF OR RELATES TO (A) VIOLATION OR BREACH OF ANY TERM, OBLIGATION, REPRESENTATION, WARRANTY OR DUTY CONTAINED IN THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR (C) USE OR MISUSE OF THE PRODUCTS OR SHIFT’S SOFTWARE, OR (D) COMMUNICATION SPREAD BY MEANS OF THE PRODUCTS OR SHIFT’S SOFTWARE.
2.26.2 CUSTOMER ASSUMES THE SOLE RESPONSIBILITY FOR ITS TECHNOLOGY, WITHOUT LIMITATION, COMPLIANCE WITH ALL GOVERNMENTAL REQUIREMENTS RELATED TO CUSTOMER (INCLUDING COMPLIANCE WITH ALL FEDERAL TRADE COMMISSION RULES, REGULATIONS AND GUIDELINES), REGISTRANT DATA AND ITS BUSINESS. THE CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY IN ANY EVENT WHERE THE CUSTOMER’S NEGLIGENCE, ERROR, OMISSION OR INTENTIONAL ACT CAUSES HARM TO THE COMPANY. CUSTOMER ALSO INDEMNIFIES AND HOLDS COMPANY HARMLESS FOR ANY THIRD PARTY PLATFORM TECHNOLOGY SOLD BY THE COMPANY TO THE CUSTOMER. THESE TECHNOLOGIES MAY INCLUDE BUT ARE NOT LIMITED TO FRONT END TRADING PLATFORMS, BACKOFFICE SOLUTIONS, CRM, BRIDGE AND PLUGINS.This clause 2.26 survives termination of this Agreement.
2.27. You may use the Product in any country, in accordance with the terms and conditions of this Agreement.
3. Term, termination, updates
3.1. Term. This Agreement shall become effective as of the Effective Date (upon acceptance by You) and shall remain effective until terminated by either party as set out below. The Additional Terms shall become effective as of the date upon which they are accepted by You or Your use of the relevant Shift products and/or service, and will remain effective until terminated by either You or Shift in accordance with the provisions contained herein.
3.2. Termination. You may terminate this Agreement at any time. Without limiting other remedies, Shift shall limit, suspend, or terminate the products license and use of Shift’s Software, prohibit access to Shift’s Website and delete Your User Account and/or Login, with immediate effect, automatically and without recourse to the courts, if we reasonably believe that You are in breach of this Agreement, creating problems and potential legal liabilities, engaging in fraudulent, immoral or illegal and unlawful activities, or for other similar reasons.
3.3. Consequences of Termination: Upon termination of this Agreement and the Additional Terms: (a) the License and rights to use the Product and Software shall immediately terminate; (b) You must immediately cease any and all use of the products and Shift’s Software; and (c) You must immediately remove the Product and Shift’s Software from all hard drives, servers and other storage media and destroy all copies of Shift’s Software in Your possession or under Your control.
3.4. New Versions: Shift reserves the right to amend this Agreement at any time by publishing the revised Agreement on Shift’s Website. The revised Agreement shall become effective upon the date of such publication or upon Your express acceptance of the revised Agreement by clicking on the “Continue”, “Accept” or a similar icon or using the relevant link. Continued use of the Product shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
4. Disclaimer of warranties and limitation of liability
4.1. NO WARRANTIES. YOU AGREE THAT SHIFT HAS MADE NO EXPRESS WARRANTIES REGARDING THE PRODUCTS AND SHIFT’S SOFTWARE WHICH ARE BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND; SHIFT HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS AND SHIFT’S SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. SHIFT FURTHER DOES NOT REPRESENT OR WARRANT THAT SHIFT’S SOFTWARE WILL ALWAYS BE AVAILABLE AND ACCESSIBLE, THAT ITS OPERATION WILL BE UNINTERRUPTED, TIMELY, SECURE AND ERROR-FREE OR THAT ANY COMMUNICATION WILL BE COMPLETE AND ACCURATE. NOR DOES SHIFT WARRANT ANY CONNECTION TO OR TRANSMISSION OF DATA FROM THE INTERNET, MADE THROUGH SHIFT’S SOFTWARE.
4.2. Your Own Risk: You acknowledge and agree that You assume any and all risks arising out of the use of the Product and Shift’s Software, to the maximum extent permitted by law. You acknowledge and agree that the products may be hosted by a Institution that is independent of Shift. All activities carried out by the You are subject to an agreement between You and the Institution that shall offer You services. It is at Your sole and absolute discretion to enter into such agreements and in no event shall Shift be liable for Your activities using these products.
Neither the information, nor any opinion, trading tools or services contained in this products constitute a solicitation or offer by Shift Software (“Shift”) or its affiliates to offer or sell any financial instruments, nor shall any such financial instruments be offered or sold to any person in any jurisdiction in which such activity or sale would be unlawful under the securities laws of such jurisdiction. Decisions based on the information contained in these products are at Your sole responsibility. By using this products you agree to indemnify and hold Shift, its officers, directors, employees, affiliates, agents, licensors, staff and suppliers harmless against any and all claims, losses, liability, costs and expenses (including but not limited to attorney’s’ fees) arising from Your use of this Product as defined in paragraph 1 of this Agreement, in violation of the terms of the Agreement and/or Additional Terms or from any decision made by You, based on such information.
4.3. No Liability: The Product is not sold but provided free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT SHIFT, ITS AFFILIATES, LICENSORS AND STAFF WILL HAVE NO LIABILITY FOR ANY POSSIBLE CONSEQUENCES ARISING OUT OF YOUR USE OF SHIFT’S SOFTWARE, AS SET FORTH BELOW. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SHIFT’S SOFTWARE IS TO IMMEDIATELY UNINSTALL AND DISCONTINUE ITS USE.
4.4. LIMITATION OF LIABILITY. IN NO EVENT SHALL SHIFT, ITS AFFILIATES, LICENSORS AND STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:
4.4.1. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OR CORRUPTION OF DATA, INTERRUPTION, DEVICE FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS AND SHIFT’S SOFTWARE;
4.4.2. ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT), ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS AND SHIFT’S SOFTWARE;
4.4.3. ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH:
(I) ANY DISRUPTIONS OR DELAY IN COMMUNICATION WHEN USING THE PRODUCTS AND SHIFT’S SOFTWARE;
(II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY SHIFT FOR ANY REASON;
(III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE PRODUCTS AND SHIFT’S SOFTWARE TO YOU.
THIS CLAUSE 4.4 SURVIVES TERMINATION OF THIS AGREEMENT.
4.5. THE LIMITATIONS ON SHIFT’S LIABILITY AS SPECIFIED IN PARAGRAPH 4.4 ABOVE SHALL APPLY WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE. THIS CLAUSE 4.5 SURVIVES TERMINATION OF THIS AGREEMENT.
4.6. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SHIFT BE LIABLE FOR PERSONAL INJURY, DEATH, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE).
4.7. Limitations on Jurisdiction. Some jurisdictions do not allow some of the exclusions or limitations as set forth above, therefore some of the exclusions or limitations may not apply to You. In such cases, liability shall be limited to the maximum extent permitted by the applicable law. This clause 4.7 survives termination of this Agreement.
5.1. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement that governs the relations between You and Shift with respect to the Product and Shift’s Software and shall supersede and replace all prior understandings and agreements governing such relations, unless they were prepared as a separate document and executed in writing. Nothing in this clause shall exclude or restrict liability arising out of fraud or fraudulent misrepresentation.
5.2. Partial Invalidity. If any provision under this Agreement, or any part of a provision, is found by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, and the provision (or part thereof) in question is not of a fundamental nature to the Agreement as a whole, the legality, validity or enforceability of the remainder of the Agreement (including the remainder of the term which contains the relevant provision) shall not be affected.
5.3. No waiver. Failure to exercise, or delay in exercising, a right, power or remedy provided under this Agreement or by the applicable law shall not constitute a waiver of that or any other right, power or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
5.4. Applicable Law and Competent Court. This Agreement shall be governed by and be construed in accordance with the laws of New York State. Any legal action or proceeding arising under this Agreement shall be subject to the jurisdiction of the courts of New York State.
5.5. Language. The original English version of the Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version of the Agreement and any other language version, the English language version shall prevail.
5.6. Survival. The terms of clause 2.26, 2.3 and 2.5 as well as any other provisions of this Agreement which are expressed to survive or operate in the event of termination, shall survive termination of this Agreement for whatever reason.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND YOUR RIGHTS AND OBLIGATIONS, AS WELL AS THE TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE “NEXT” OR “ACCEPT” ICON AND(OR) PROCEEDING TO INSTALL THE SOFTWARE OR USING SHIFT’S SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS DOCUMENT AND GRANT SHIFT THE RIGHTS SET FORTH HEREIN.