MOBILE APPLICATION SUBSCRIPTION AND END USER LICENSE AGREEMENT
This Mobile Application Subscription and End User License Agreement (this “Agreement”) is a binding agreement between you (“End User,” “you” or “your”) and SHIFTS APP LLC (“Company”). This Agreement governs your use of the SHIFTS: EATING DISORDER HELP mobile application, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
THIS AGREEMENT TAKES EFFECT UPON (A) YOUR SUBSCRIPTION TO THE APPLICATION; OR (B) YOUR ACCESS OR USE OF THE APPLICATION (the “Effective Date”). BY SUBSCRIBING TO, ACCESSING OR USING THE APPLICATION YOU (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (III) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE AND ACCEPT THESE TERMS, YOU MAY NOT SUBSCRIBE TO, ACCESS OR USE THE APPLICATION AND SHOULD REFRAIN FROM THE SAME.
1. Age Restriction.
You must be at least eighteen (18) years of age to subscribe to the Application. Individuals between the ages of thirteen (13) and seventeen (17) may use the Application only with the involvement and consent of a parent or legal guardian, who must agree to this Agreement on their behalf and who is responsible for supervising that use. A person under the age of thirteen (13) may not access or use the Application under any circumstances, and if we learn that a user is under thirteen (13), we will close the account and delete the associated information. A subscription may only be purchased by a person aged eighteen (18) or over, or by a parent or legal guardian on a minor's behalf.
2. License Grant.
Subject to and conditioned on your subscription to the Application, payment of Fees (as hereinafter defined), and compliance with all other terms and conditions of this Agreement, Company hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to:
(a) download, install, and use the Application for your personal, non-commercial use on any device that you own or control and that is permitted by the usage rules of the app store from which you obtained the Application (each, a “Mobile Device”) strictly in accordance with the Application’s documentation; and
(b) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 8) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 8.
3. License Restrictions.
Except as may be expressly permitted by applicable law or expressly authorized by the Company, you shall not:
(a) copy the Application;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademark or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any feature or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
(f) use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material on the Application;
(g) use any manual process to monitor or copy any of the material on the Application, or for any other purpose not expressly authorized in this Agreement, without Company’s prior written consent;
(h) frame, mirror, or otherwise incorporate the Application or any portion of the Application as part of any other mobile application, website, or service;
(i) use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party’s use of the Application; or
(j) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
4. Reservation of Rights.
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Subscriptions.
(a) Access. End Users are permitted access to the Application upon subscription to the same by payment of a subscription fee and selection of a monthly or annual subscription period. For the avoidance of doubt, an annual subscription constitutes three hundred and sixty five (365) calendar days from the date of subscription. You will only have access to the Application while your paid subscription is active and subsisting.
(b) Subscription Fee and Renewals. Subscriptions are paid for by an upfront payment with automatic renewals for a like term on the day following the end of the subscription period. Subscriptions are sold and billed through the app store from which you obtained the Application, and that app store, not Company, charges your payment method, applies its own renewal and notice rules, and handles cancellations and refunds. You must cancel through your app store account settings at least 24 hours before the end of the current period to avoid being charged for the next one. Cancelling through the Application alone does not stop billing. Refund eligibility may vary depending on the platform through which the subscription was purchased and applicable law.
(c) Confirmation of Subscription. Our obligation to provide the content to which you subscribed only comes into being when we take receipt of your subscription and confirm your subscription to you by email or by permitting access to the Application. We may confirm your subscription and send you an email to confirm your access to the subscription purchased. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the payment method you provided, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any products purchased through the Application for commercial purposes.
(d) Free Trials. Where we offer a free trial, we will tell you the length of the trial, the price and billing period that follow it, and how to cancel, before you start. Unless you cancel through your app store account settings at least 24 hours before it ends, the trial converts automatically to a paid subscription at the price disclosed to you, and your access to the Application ends if you cancel.
Right of Withdrawal (European Economic Area and United Kingdom). If you are a consumer in the European Economic Area or the United Kingdom, you have 14 days from the date of purchase to withdraw from the purchase without giving a reason. By starting to use the Application during that period, you expressly request immediate performance and acknowledge that you lose the right of withdrawal once performance has been fully completed. Where the Application was purchased through an app store, exercise the right through that app store, which administers withdrawal and refunds on our behalf. Nothing in this Agreement removes any statutory cancellation or refund right you have under the law of the country where you live.
6. Fees and Payment.
(a) Fee Changes and Charges. Company reserves the right to change subscription plans or pricing for the Application or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. A price change does not apply to a subscription period you have already paid for. We will give you notice of any price increase before it takes effect, and where the app store or applicable law requires your affirmative consent to continue at the new price, the increase will not take effect unless you give it. You may cancel before the increase takes effect.
(b) Payment Method. Payment is made through the payment method registered with your app store account, and is governed by that app store’s terms. Company does not receive or store your payment card details. You are responsible for all fees, charges, and applicable taxes for the subscriptions you purchase. Questions about a charge, a refund, or a payment method should be directed to the app store in the first instance.
7. Collection and Use of Your Information.
You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. All information we may collect through or in connection with this Application is subject to our Privacy Policy https://theshiftsapp.com/privacy-policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
8. International Data Transfers.
You acknowledge and agree that your information may be collected, processed, transferred, and stored in the United States or other countries where the Company or its third-party service providers operate. By using the Application, you consent to such transfer, processing, and storage of your information outside your country of residence, subject to applicable privacy laws and the Company’s Privacy Policy.
9. Content and Services.
The Application may provide you with access to Company’s website located at https://theshiftsapp.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by Website’s Terms of Use and Privacy Policy located at https://theshiftsapp.com/terms-of-use and https://theshiftsapp.com/privacy-policy, which are incorporated herein by this reference, and are subject to change from time to time by Company. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
10. Geographic Restrictions.
The Application is operated from the United States and may be accessed in certain countries outside the United States where legally permitted. The Company makes the Application available only in the countries it selects in the applicable app store. The Application is not available in, and you may not access or use it from, Cuba, Iran, North Korea, Syria, the Crimea, Donetsk, and Luhansk regions of Ukraine, the Russian Federation, Belarus, or mainland China, or any other country subject to comprehensive trade sanctions or in which the Company determines it cannot lawfully operate. You may not use a virtual private network, proxy, or other means to circumvent these restrictions.
You acknowledge that access to certain features, content, or services may vary by location and may not be available in all jurisdictions.
If you access or use the Application outside the United States, you do so at your own initiative and are solely responsible for compliance with all applicable local laws, rules, and regulations.
The Company makes no representation that the Application or any Content and Services are appropriate or available for use in every jurisdiction.
11. Updates.
Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
12. Third-Party Materials.
The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
13. Term and Cancellation.
(a) Term. The term of this Agreement begins on the Effective Date and continues until cancelled or terminated.
(b) Cancellation. In addition to any other express termination right set forth in this Agreement:
(i) Company may immediately cancel as a result of your fraud or breach of any obligation under the terms of this Agreement.
(ii) You may cancel the subscription plan at any time. Your cancellation is effective at the end of the applicable period.
(iii) Either party may cancel this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination. Upon termination of this Agreement,
(i) All rights granted to you under this Agreement shall also terminate; and
(ii) You shall immediately discontinue use of the Application and delete all copies of the Application from your Mobile Device and account.
(iii) No expiration or termination of this Agreement will affect your obligation to pay all fees that may have become due before such expiration or termination. Refund eligibility may vary depending on the platform through which the subscription was purchased and applicable law.
(iv) Termination will not limit any of Company’s rights or remedies at law or in equity.
14. Disclaimer of Warranties.
THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
15. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Nothing in this Agreement excludes or limits Company’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be excluded or limited under the law of the country where you live. Where an exclusion above is held unenforceable, Company’s total liability is limited to the greater of the amount you paid for the Application in the twelve months before the event giving rise to the claim, or one hundred United States dollars.
16. Consumer Rights.
Many countries give consumers statutory rights and guarantees that cannot be excluded, limited, or waived by contract, and those rights prevail over anything in this Agreement that conflicts with them. Nothing in this Agreement is intended to exclude, restrict, or modify any consumer rights or remedies that cannot be excluded under applicable law. To the extent permitted by law, the Company limits its liability in relation to any non-excludable guarantees or warranties to the resupply of the relevant services or the cost of supplying those services again.
17. Application Use.
(a) You acknowledge and agree that you will not access, use, or interact with the Application while operating a motor vehicle, bicycle, scooter, vessel, aircraft, or any heavy machinery, or while engaged in any activity that requires your full attention or that could reasonably be expected to distract you and cause injury, death, or property damage.
(b) You acknowledge and agree the Application is not designed or intended for use while driving, navigating traffic, or performing any activity that could result in a safety risk. You agree to comply with all applicable laws and regulations regarding distracted driving and device use.
(c) You further acknowledge that any use of the Application while operating a vehicle is done entirely at your own risk, and that the Company disclaims all liability arising from or related to such use, to the fullest extent permitted by law.
18. Medical Disclaimer
The Application is intended solely for informational, educational, and motivational purposes and does not provide medical treatment, psychotherapy, counseling, diagnosis, crisis intervention, or emergency services. The Application is not a medical device. It is not intended to diagnose, prevent, monitor, predict, prognose, treat, or alleviate any disease, injury, or disability. Company makes no claim that use of the Application produces any therapeutic or clinical outcome.
The Application is not intended for use in medical or mental health emergencies. If you believe you may be experiencing a medical or psychiatric emergency, contact emergency services, a crisis hotline, or a licensed healthcare provider immediately.
(a) Not A Healthcare Provider. Company is not a health care or medical device provider, nor should our content be considered medical advice. Company makes no claims, representations or guarantees that content on the Application provides a physical or therapeutic benefit. Any health information and links, whether provided by Company or by contract from outside providers, is provided simply for your convenience and shall not be relied upon as health or medical care.
(b) End User Participation is at End User’s Election and Risk. Your participation is at your own risk. You should stop immediately if you are experiencing discomfort. To the extent that you participate in any movement, breathwork or other content requiring physical movement featured in the Application, you represent and warrant that you are in adequate physical health to perform such activities and have no disability or condition that would make such movement dangerous. You should consult a licensed physician prior to beginning or modifying any program that you undertake, especially if you have a prior injury, a history of heart disease, high blood pressure, other chronic illness, or condition. You acknowledge that Company has advised you of the necessity of doing so.
(c) Informational Purposes Only. Any advice or other materials in the Application are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Application.
19. Indemnification.
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
20. Export Regulation.
The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
21. US Government Rights.
The Application is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
App Store Terms. The following applies where you obtained the Application from the Apple App Store, and Apple Inc. and its subsidiaries are third-party beneficiaries of this Section with the right to enforce it against you:
This Agreement is between you and Company only, and not with Apple. Company, not Apple, is solely responsible for the Application and its content.
Your license to use the Application is limited to a non-transferable license to use the Application on any Apple-branded device you own or control, as permitted by the Usage Rules in the Apple Media Services Terms and Conditions, including sharing through Family Sharing where enabled.
Apple has no obligation to furnish any maintenance or support for the Application.
If the Application fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price. To the maximum extent permitted by law, Apple has no other warranty obligation with respect to the Application, and any other claims, losses, liabilities, damages, costs, or expenses attributable to a failure to conform to any warranty are the sole responsibility of Company.
Company, not Apple, is responsible for addressing any claim by you or a third party relating to the Application or your possession or use of it, including product liability claims, any claim that the Application fails to conform to any legal or regulatory requirement, and claims arising under consumer protection, privacy, or similar legislation.
Company, not Apple, is solely responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Application infringes that third party’s intellectual property rights.
You represent that you are not located in a country subject to a United States Government embargo or designated as a terrorist supporting country, and that you are not on any United States Government list of prohibited or restricted parties.
You must comply with any applicable third-party terms of agreement when using the Application.
Other App Stores. Where you obtained the Application from an app store other than the Apple App Store, the equivalent terms required by that store apply in place of the Section above, and that store’s operator is a third-party beneficiary of those terms.
22. Severability.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
23. Governing Law.
To the fullest extent permitted by applicable law, this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflict of law principles. Any disputes arising from or relating to this Agreement or the Application shall be brought exclusively in the state or federal courts located in Illinois, United States, unless otherwise required by applicable consumer protection laws in your jurisdiction of residence.
If you are a consumer resident outside the United States, the choice of Illinois law and Illinois courts above does not deprive you of any mandatory protection of the law of the country where you live, you may bring proceedings against Company in the courts of that country, and Company will bring proceedings against you only in those courts.
24. Entire Agreement.
This Agreement, the Terms of Use and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
25. Waiver.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
