TheShiftSwap USER AGREEMENT (Terms and Conditions)
This User Agreement Terms and Conditions (the “Terms”) govern the access and use of the HapiGig App (as defined below) by you (the “User”), made available by Khaki Group, LLC, a Georgia limited liability company, located at 3510 Old Milton Pkwy., Suite A, Alpharetta, GA 30005, d/b/a HapiGig (“HapiGig”). The Terms may refer to HapiGig or the User as a “Party,” or collectively as the “Parties.”
HapiGig has developed and owns a web-based solution and is developing an application under the name HapiGig (the “HapiGig App”). The HapiGig App connects warehouse employees who desire extra work hours and flexibility to employers in need of additional labor (the “Employers”). The warehouse employees register and create an active worker profile account (the “Worker Profile”) on the HapiGig App. Users continuously update their Worker Profiles to show their availability schedules and Employers can search the HapiGig App for Users that are available at the time needed by the Employers. Employers then may offer a User a particular “gig” and the User can choose to accept or reject it. User’s access and use of the Services (as defined below) constitutes User’s agreement to be bound by these Terms, which establishes a contractual relationship between User and HapiGig.
- Services. HapiGig shall provide to User the following services (collectively, the “Services”):
- Provide User with access to the HapiGig App to register and create a Worker Profile.
- Provide User with access to and use of the HapiGig App to assist User in obtaining extra work.
- Facilitate online and automated connection, through the HapiGig App, of User and Employers to meet Employers’ request for labor needs.
- Provide any other services determined necessary by HapiGig, in its sole discretion, to accomplish and facilitate the foregoing.
- Notwithstanding anything to the contrary contained in the Terms, HapiGig may, from time to time, change the Services without the consent of User provided such changes do not materially affect the nature or scope of the Services.
- User Representations and Warranties. In order for the User to access the Services, User represents and warrants that User:
- Is eighteen (18) years of age or older and has the right, authority, and capacity to enter into these Terms and comply with all of the provisions hereunder.
- Shall create and maintain only one (1) Worker Profile.
- Shall maintain accurate, complete, and up-to-date information as to the User’s Worker Profile.
- (i) Shall be the sole user of HapiGig App; (ii) ensure that no other individuals are authorized to use User’s Worker Profile; and (iii) contact HapiGig immediately upon discovering or suspecting unauthorized use of User’s Worker Profile.
- Shall maintain the security and secrecy of the User’s Worker Profile username and password and shall not assign or otherwise transfer User’s Worker Profile to any other person or entity.
- Shall comply with all applicable laws when using the Services and will only use the Services for lawful purposes.
- Shall not cause nuisance, annoyance, inconvenience, or property damage to the Employers or any other individual or entity in relation to the Services and HapiGig App.
- Relationship of the Parties. User acknowledges and agrees that nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Rather, User acknowledges and agrees that in order to access and use the Services and HapiGig App, User shall be employed be a third-party employer (“Third-Party Employer”) and shall be required to complete all necessary requirements requested of the Third-Party Employer. Additionally, User’s employment by the Third-Party Employer and subsequent use of the Services and HapiGig App is subject to the approval of the Third-Party Employer.
- Payment and Hour Limitation. User acknowledges and agrees that the User shall be paid by the Third-Party Employer and that the hourly rate of pay shall be determined separately for each particular gig. User further acknowledges and agrees that User shall not be eligible to work more than thirty (30) hours per week through Users use of the Services and HapiGig App.
- Text Messaging. By creating a Worker Profile, User agrees that HapiGig may send you text (SMS) messages as part of the normal business operation of User’s use of the Services.
- User Provided Content. As described above, User will create a Worker Profile on the HapiGig App and may provide textual, audio, and/or visual content and information (“User Content”). It is the responsibility of the User to provide accurate, timely, updated and complete information when creating a Worker Profile and providing User Content. User will continuously update User’s Worker Profile to show their availability schedules. User acknowledges and understands that any User Content provided by User remains User’s property. However, by providing User Content, User grants HapiGig a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, use, copy, modify, create derivative works of, distribute, publicly display, and otherwise use in any manner as is determined by HapiGig in its sole discretion.
User represents and warrants that: (i) User either is the sole and exclusive owner of all User Content or User has all rights, licenses, consents, and releases necessary to grant HapiGig the license to the User Content as set forth above; and (ii) neither the User content nor User’s submission, uploading, publishing, or otherwise making available such User Content nor HapiGig’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
User further agrees to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive, as determined by HapiGig in its sole discretion, whether or not such material may be protected by law.
Furthermore, HapiGig exercises no control over User Content from other users or the accuracy or completeness of any User Content. Worker Profiles contained on, or linked from, the HapiGig App are indexed or posted in an automated manner. HapiGig does not have any obligation to screen any Worker Profile, or to include any Worker Profile in its search results or other listings, and may exclude or remove any Worker Profile OR USER CONTENT for any or no reason WITHOUT NOTICE TO USER AND IN HAPIGIG’S SOLE DISCRETION. HapiGig assumes no responsibility, and disclaims all liability, for the content, accuracy, completeness, legality, reliability, or availability of any Worker Profile.
- Network Access. User is responsible for obtaining the data network access necessary to use the Services and HapiGig App. User’s mobile network’s data and messaging rates and fees may apply if User accesses or uses the HapiGig App from a wireless-enabled device and User shall be responsible for such rates and fees. User is responsible for acquiring and updating compatible hardware or devices necessary to access and utilize the Services and HapiGig App and any updates thereto. HapiGig does not guarantee that the Services or HapiGig App, or any portion thereof, will function on any particular hardware or devices. In addition, the Services and/or HapiGig App may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
- Disclaimer of Warranties and Limitation of Liability.
- THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HAPIGIG DOES NOT CONTROL OR REVIEW USER CONTENT FOR ACCURACY. HAPIGIG DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OR REPRESENTATIONS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES OF (A) MERCHANTABILITY; (B) FITNESS FOR A PARTICULAR PURPOSE; (C) TITLE; (D) ACCURACY OF DATA; AND (E) NON-INFRINGMEENT. ADDITIONALLY, HAPIGIG MAKES NO REPRESENTAITON, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES AND HAPIGIG APP. ADDITIONALLY, SHOULD USER BECOME DISSATISFIED OR HARMED BY THE SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE USER’S USE OF THE SERVICES AND HAPIGIG APP IN ACCORDANCE WITH THESE TERMS.
- HAPIGIG SHALL NOT BE LIABLE TO USER OR ANY THIRD-PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR THIRD-PARTY DAMAGES OR CLAIMS ARISING FROM THE SERVICES OR THE HAPIGIG APP, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER SUCH DAMAGES AROSE FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; AND (C) WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Intellectual Property.
- Except for any User Content, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to all documents, work product and other materials that are delivered to User under the Terms or prepared by or on behalf of HapiGig in the course of performing the Services shall be owned by HapiGig.
- Subject to User’s compliance with the Terms, HapiGig grants User a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the HapiGig App on its electronic devices solely in connection with its use of the Services; and (ii) access any content, information and related materials that may be made available through the Services. Any rights not expressly granted herein are reserved by HapiGig and HapiGig’s licensors.
- User may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services or HapiGig App; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by HapiGig; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (v) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
- User’s Acts of Omissions. If HapiGig’s performance of its obligations under these Terms is prevented or delayed by any act or omission of User or its agents or representatives, HapiGig shall not be deemed in breach of its obligations under the Terms or otherwise liable for any costs, charges or losses sustained or incurred by User, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Modifications to the Services and/or HapiGig App. Hapigig reserves the right to evaluate, improve, amend, or temporarily or permanently discontinue the Services or HapiGig App or any content or information thereon with or without providing notification to User. User acknowledges and agrees that HapiGig and its officers, directors, agents, investors, representatives, and employees are not liable to User or any third party for any modification or discontinuance of the Services or HapiGig App.
- Limitations on Use of HapiGig App. Hapigig reserves the right to place any limitations, even if not outlined herein, and in HapiGig’s sole discretion, on the Services, HapiGig App, and User’s Worker Profile to maintain the performance and availability of the Services and to enforce the Terms.
- Term, Termination, and Survival.
- The Terms shall commence upon acceptance by the User and shall continue and remain in full force and effect during the duration of User’s use of the Services and until terminated in accordance with the provisions outlined herein. The entire duration of the Terms shall be referred to as the “Term.”
- Termination by User. User may terminate User’s use of the Services and HapiGig App at any time by submitting a written notice to HapiGig at the email address identified in Section 16(b). User may be asked to provide a reason for such termination.
- Termination by HapiGig. HapiGig may terminate User’s use of the Services and HapiGig App at any time effective upon written notice to the most recent email address provided by User. Such notification is not required to be sent prior to termination of the Services. All termination decisions are in HapiGig’s sole discretion and HapiGig is not required to give a reason for such termination.
- Effect of Termination. Upon termination of the Terms for any reason, HapiGig will immediately terminate User’s access to the Services and the HapiGig App by disabling User’s Worker Profile and access to the Services and HapiGig App. User acknowledges and agrees that User must immediately stop using the HapiGig App. User’s employment shall also be terminated with the Third-Party Employer.
- Surviving Rights. The rights and obligations of the parties set forth in this Section and in Sections 8, 9, 13, and 14 and any right or obligation of the parties in the Terms which, by its nature, should survive termination or expiration of the Terms, will survive any such termination or expiration of the Terms.
- Indemnification. User agrees to indemnify and hold harmless HapiGig and HapiGig’s affiliates and their officers, directors, employees, agents, successors and permitted assigns from any and all costs, claims, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including reasonable attorneys’ fees), arising out of or resulting from: (i) User’s use of the Services; (ii) User’s failure to comply with the Terms; (iii) the User Content or User’s submission of User Content onto the HapiGig App and; (iv) any other activity which the User engages in, on, through or because of the Services, including any work or services provided by User to any third party or Employers utilizing the Hapigig App ; (vi) any act or omission of User; (vii) User’s violation of any local, State, or Federal law, rule or regulation; (viii) any warranty, representation, promise or other obligation of User to any third party or Employers; or (ix) User’s negligence, wrongful acts or misconduct.
- Changes to Terms. The Terms are subject to occasional revisions. User’s use of the Services and HapiGig App after revisions will constitute User’s acceptance of the revised terms and the revisions will apply to the User after the “last updated” date, which is posted on this page.
- Entire Agreement. The Terms, including and together with any related requirements and guidelines set forth within the HapiGig App, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) or email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to HapiGig at 3510 Old Milton Pkwy., Suite A, Alpharetta, GA 30005 with a copy to firstname.lastname@example.org and to User: at the address and email provided by User.
- Interpretation. For purposes of the Terms, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Terms as a whole. Unless the context otherwise requires, references herein: (i) to Sections, schedules and exhibits refer to the Sections of, and schedules and exhibits included with the Terms; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any schedules and exhibits referred to herein shall be construed with, and as an integral part of, the Terms to the same extent as if they were set forth verbatim herein.
- Severability. If any term or provision of the Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Headings. The headings outlined herein are for reference only and shall not affect the interpretation of the Terms.
- Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. User shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under the Terms without the prior written consent of HapiGig. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the User of any of its obligations hereunder.
- Successors and Assigns. The Terms are binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- No Third-Party Beneficiaries. The Terms benefit solely the Parties to this Agreement and their respective permitted successors and assigns and nothing herein, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Terms.
- Governing Law; Submission to Jurisdiction. Georgia law applies to the Terms without regard to any choice-of- law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with the Terms will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts. Service of process, summons, notice or other document by mail to such Party’s verified address shall be effective service of process for any suit, action or other proceeding brought in any such court.