Terms and Conditions

1.         DEFINITIONS

1.1       “Access Protocols” means the access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Software Product.

1.2       “Customer” means the party that has entered into an Order with Firstshift Inc. (Firstshift) and/or Firstshift’s resale partner for the license and use of the Software Product.

1.3       “Documentation” means written materials made available by Firstshift that relate to the operation and use of the Program and any updates thereto.

1.4       “Hosted Services” means the cloud service that is used to deliver the Software Product(s) as well as any modifications, improvements, extensions and/or updates thereto.  

1.5       “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.6       “Order” means a document executed by Customer, which describes certain products and/or services purchased/licensed by Customer.

1.7       “Software Product” means the Software and any related Documentation.

1.8       “Software” means the object code version of the Firstshift software identified in an Order, including any related data and Third-Party Software, incorporated therein or provided therewith, as well as any updates and/or upgrades to the Software.

1.9       “Third Party Software” means any software program developed by a third party that is licensed by Firstshift and made available to Customer as a component of the Hosted Services.

2.       SOFTWARE PRODUCT

2.1     License Grant. Firstshift grants Customer a right to receive the Software Product specified in the applicable Order.  Subject to the Terms, Firstshift hereby grants to Customer, during a mutually agreed upon term, anon-sublicensable, non-transferable, non-exclusive license to Web-based access and use of the Software Product set forth in an Order.

2.2    Delivery and Access.  

2.2.1     On or as soon as reasonably practicable following the effective date of an Order, Firstshift shall provide to Customer the Access Protocols to allow Customer to access the Software Product via the Hosted Services.  

2.2.2     Customer shall use commercially reasonable efforts to prevent unauthorized access to, o ruse of, the Software Product, and notify Firstshift promptly of any such unauthorized use known to Customer.

2.3    Use Restrictions. Except as otherwise set forth in the Terms, Customer shall not, directly or indirectly attempt or knowingly permit or encourage others to attempt to: (a) sell, lease, assign, sublicense, transfer, rent or time-share the Software Product, or use the Software Product to perform services for the benefit of third parties not authorized by the Terms; (c) adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or protocols from the Software Product, except and only to the extent permissible by applicable law despite this prohibition; or (d) remove, obscure or alter copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software Product.  

2.4    Third-Party Software. Third-Party Software included with the Software Product is licensed under the terms of Third-Party Software Licenses. Customer understands and agrees that, although provided by the Company, Customer’s use of the Third-Party Software shall be and is governed by such Third-Party Software Licenses.  If there is a conflict between the Terms and any Third-Party Software License with respect to Third-Party Software, the provisions of such Third-Party Software License shall prevail.

3.       OWNERSHIP

3.1    Software Product.  

3.1.1     Customer acknowledges that Firstshift retains all right, title, and interest in and to the Software Product, and that the Software Product is protected by Intellectual Property Rights owned by or licensed to Firstshift. Other than as expressly set forth in the Terms, no license or other rights in the Software Product is granted to Customer.  

3.1.2     Customer covenants, represents, and warrants that no software provided by Customer and used with the Software Product shall be covered by a GNU license or other “opensource” license or other software which could compromise or interfere in anyway with Firstshift’s Intellectual Property Rights in or to the Software Product. Customer specifically agrees that it will obtain, at Firstshift’s reasonable request, the execution of any instrument that may be appropriate to assign these rights to Firstshift or perfect these rights in Firstshift’s name.

3.2    Third Party Software.  Customer acknowledges that all right, title, and interest in and to the Third-Party Software is retained by the provider of such Third-Party Software, and that the Third-Party Software is protected by Intellectual Property Rights owned by or licensed to Firstshift.

4.      WARRANTIES; REMEDY; DISCLAIMER

4.1    Firstshift Warranty. Firstshift warrants to Customer that: (a) Firstshift has the right to grant the licenses provided to Customer hereunder; (b) the Software Product does not contain any harmful code, viruses, malware, or other similar mechanisms; and (c) the operation and performance of the Software Product shall materially conform to the Documentation.

4.2    Remedy. If the Software Product does not function substantially in accordance with the Documentation, Firstshift shall ,at its sole option, modify Software Product to reasonably conform to the Documentation. This remedy is Customer’s exclusive remedy for breach of Firstshift’s warranty. Notwithstanding the foregoing,  Firstshift shall have no warranty obligation for: (i) modifications to the Software Product made by Customer without Firstshift’s prior authorization; (ii) problems in the Software Product caused by any Customer owned or licensed third party hardware or software; or(iii) matters beyond Firstshift’s reasonable control.

4.3    Disclaimer of Warranties. THE SOFTWARE PRODUCT IS PROVIDED BY FIRSTSHIFT “AS IS”. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 4.2, FIRSTSHIFT DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PRODUCT WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

5.       LIMITATION OF LIABILITY

5.1    TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR FIRSTSHIFT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FIRSTSHIFT’S LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED) OR ANY OTHER THEORY) ARISING UNDER OR WITH REGARD TO THE TERMS OR THE SOLUTION, DOCUMENTATION, OR OTHER ITEMS FURNISHED HEREUNDER SHALL IN NO EVENT EXCEED ONE HUNDRED THOUSAND DOLLARS.

5.2    NOTWITHSTADING THE FOREGOING, IN NO EVENT SHALL FIRSTHIFT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, REVENUE, OR PROFIT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.3     NO ACTION ARISING OUT OF THESE TERMS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

6.       AUDIT

6.1    Customer agrees to maintain clear, accurate and complete records relating to the authorized usage of the Software Product.  During the term of the Order and for a period of two (2) years thereafter, Firstshift shall have the right to verify, at Firstshift’s expense, Customer’s compliance with the Terms. Verification will take place upon reasonable notice, during normal business hours and in a manner that does not interfere unreasonably with Customer’s operations.  

6.2    Firstshift will use the information obtained during verification only to enforce Firstshift’s rights and to determine whether the Customer complies with the Terms. By invoking the rights and procedures described herein, Firstshift does not waive its rights to enforce the Terms (including any Order or service schedule incorporating these terms) or to protect Firstshift’s Intellectual Property Rights by any other means permitted by law.

7.       MISCELLANEOUS

7.1           Compliance with Laws. Customer represents and agrees that it will use the Software Product in compliance with all applicable federal, state, and local laws and regulations, and communications common carrier tariffs. Firstshift reserves the right to take all actions, which it believes necessary, in its sole discretion, to comply with applicable laws, regulations and tariffs. Customer agrees to discontinue any improper use of the Software Product promptly after receipt of written notice from Firstshift as is reasonably feasible under the circumstances.

7.2           Assignment; Successors. The Terms are not assignable or transferable by Customer in whole or in part, by operation of law or otherwise, without the prior written consent of Firstshift, not be unreasonably withheld. Firstshift may assign or transfer the Terms upon notice to Customer as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of Firstshift’s assets to another entity provided said entity assumes all of Firstshift’s obligations and liabilities hereunder.  The Terms shall inure to and be binding upon the Parties’ respective successors and assigns.

7.3           Exclusion of Third-Party Rights.  Notwithstanding anything contained herein, an entity that is not a party to the Terms has no right to enforce any term of the Terms and shall not be a third-party beneficiary hereof.

7.4           Severability. In the event that any portion of the Terms adjudged to be void or unenforceable, that portion shall be severed and the remainder of the provisions of the Terms shall continue and shall be effective and enforceable.

7.5           Waiver. No delay or omission by either Party to exercise any right or power hereunder shall preclude the exercise of such right or power in subsequent instances or be construed to be a waiver. A waiver by either Party of any of the covenants to be performed by the other Party shall not be construed to be a waiver of any other covenant herein contained or a subsequent waiver of the same covenant, and the waiver of any breach of covenant shall not be construed to be a waiver of any succeeding breach.

7.6           Governing Law; Venue. The construction, interpretation and performance of the Terms shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflicts of law principles that would require application of the laws of any other jurisdiction. Subject to this Section 7.6,any action or dispute arising out of the Terms shall be brought in a state or federal court in the County of New York, State of New York (and any appellate courts there from) with jurisdiction over the subject matter.

7.7           Injunctive Relief. Customer acknowledges that any breach of its obligations under Section 2.3, Section 5 or Section 9 may cause irreparable harm to Firstshift for which its remedies at law will be inadequate.  In these cases, Firstshift shall be entitled to obtain injunctive relief from any court of competent jurisdiction without posting a bond therefor.

7.8           Entire Agreement; Survival. The Terms and any associated Order(s) constitute the entire agreement between the Parties with respect to the subject matter hereof and there are no written or oral representations, understandings or agreements that are not fully expressed herein. No change, waiver, or discharge of the Terms or any Order shall be valid unless in writing and signed by authorized representatives of both Parties.

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