Terms of service
Effective: May 31, 2016
1. Acceptance of Terms.
- If you are entering into this TOS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its Members, its Administrative Users, and its affiliates to this TOS. In that case, the terms “you” or “your” shall also refer to such entity, its Members, its Administrative Users, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this TOS, you may not use the Service. You acknowledge that this TOS is a contract between you and Shift Messenger, even though it is electronic and is not physically signed by you and Shift Messenger, and it governs your use of the Service.
- As our business evolves, Shift Messenger may change this TOS. You can review the most current version of the TOS at any time by visiting this page. The revised terms and conditions will become effective on the date set forth in our notice, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to cancel your account and stop using the Services, which you may do through the process provided in the Service.
- As part of the registration process, you will provide an email address and/or phone number to verify your account. You are responsible for maintaining the confidentiality of your login and account and for all activities that occur under your login or account, including the activities of Admins and Members.
- The Service is not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Services. If we become aware that you are using the Service even though you are under 13, we will deactivate your account.
2. Description of Service.
- The “Service(s)” means (a) Shift Messenger’s real-time communication, messaging, archiving and search services and related systems and technologies, as well as the website http://shiftmessenger.com (the “Site”), and (b) all software (including the Software, as defined below), applications, data, reports, text, images, and other content made available by or on behalf of Shift Messenger through any of the foregoing. The “Service” does not include Your Data (as defined below). Any modifications and new features added to the Service are also subject to this TOS. Shift Messenger reserves the right to modify or discontinue the Service (or any Service plan) or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Shift Messenger.
3. Access and Use of the Service.
- You may access and use the Service only for lawful, authorized purposes and you shall not misuse the Service in any manner (as determined by Shift Messenger in its sole discretion). See Section 6 for specific provisions outlining prohibited uses of the Service. Administrative Users shall be responsible for all actions by Members in their Organization. You shall comply with any codes of conduct, policies, storage limitations, or other notices Shift Messenger, Inc. provides you or publishes in connection with the Service from time to time. You shall promptly notify Shift Messenger if you learn of a security breach related to the Service.
- Any software that may be made available by or on behalf of Shift Messenger in connection with the Service, including Shift Messenger’s mobile and desktop applications, (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Shift Messenger only grants you a personal, non-transferable non-sublicensable and non-exclusive license to use the object code of any Software and applications, data, reports, text, images, and other content made available by or on behalf of Shift Messenger solely in connection with the Service. Any rights (including intellectual property rights) not expressly granted herein are reserved.
- Shift Messenger reserves the right to use your name as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential Shift Messenger customers. For example, we might list your company on one of our webpages under lists of Shift Messenger customers. We don’t want to list customers who don’t want to be listed, so you may send an email to firstname.lastname@example.org stating that you do not wish to be used as a reference.
4. Your Data Rights and Related Responsibilities.
- "Your Data" means any data and content you upload, post, transmit or otherwise made available via the Services . "Your Data" includes messages you send, files you upload, comments you make on files, profile information and anything else you enter or upload into the Service. Shift Messenger will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store and copy Your Data in order to display it to you and other members in your Organization, to index it so you are able to search it, to make backups to prevent data loss, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers (such as Heroku and Amazon Web Services) in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided.
- If any users send us any feedback or suggestions regarding the Service, you grant Shift Messenger an unlimited, irrevocable, perpetual, free license to use any such feedback or suggestions for any purpose without any obligation to you.
- You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Services. We may choose to review Public Content for compliance with our policies and guidelines, but you acknowledge that Shift Messenger has no obligation to monitor any information on the Services. However, Shift Messenger may remove or disable any Public Content at any time for any reason or for no reason at all. For example, if you upload files that do not belong to you to make these files available publicly, we can delete those files. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Services. The Services provide features that allow you and your users to share Your Data and other materials with others or to make it public. Please consider carefully what you allow to be shared or made public.
- To the extent you use a Service plan that is made available for a fee, you will be required to select a payment plan and provide accurate information regarding your credit card or other payment instrument. You will promptly update your account information with any changes in your payment information. You agree to pay Shift Messenger in accordance with the terms set forth in your purchase agreement and this TOS, and you authorize Shift Messenger or its third-party payment processors to bill your payment instrument in advance on a periodic basis in accordance with such terms.
- If you dispute any charges you must let Shift Messenger know within sixty (60) days after the date that Shift Messenger invoices you. All amounts paid are non-refundable. Shift Messenger may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Shift Messenger’s net income.
6. Representations and Warranties.
- You represent and warrant to Shift Messenger that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Data or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Shift Messenger to perform its obligations) in connection with the Services without obtaining any further releases or consents; and (iii) Your Data and your other activities in connection with the Service, and Shift Messenger’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Data contain any matter that is unlawful or illegal.
7. Forbidden Use.
- You agree not to:
- upload, post, transmit, or otherwise make available any of Your Data that is unlawful or illegal, including without limitation Data that is libelous, or invasive of another's privacy;
- use the Service to harm minors in any way;
- impersonate any person or entity, including, but not limited to, a Shift Messenger employee, Organization Administrator, Admin, or other Member, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- manipulate identifiers in order to disguise the origin of any of Your Data;
- upload, post, transmit, or otherwise make available any of Your Data that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, transmit or otherwise make available any of Your Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- sublicense, resell, rent, lease, transfer or assign (except as permitted in Section 14) the Service or its use, or offer the Service on a time share basis to any third party;
- use the Service to upload, post, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- use the Service to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device or software;
- modify, adapt, or hack the Service, including by using any non-public Shift Messenger APIs, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
- intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Service, including, but not limited to, any data, privacy, or export control laws, or regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
- use the Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any entitie(s) designated by the United States government as a foreign terrorist entity pursuant to section 219 of the Immigration and Nationality Act;
- use the Service to engage in any unlawful or illegal activities; and/or
- collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above.
- You acknowledge that Shift Messenger and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any of Your Data that is available via the Service. For example, we may choose to review publically visible content (“Public Content”) for compliance with our policies and guidelines. If, for instance, you upload files that do not belong to you and make these files available publicly, we can delete those files. We may also review Your Data transmitted through non-public mechanisms (such as private messages within the Service) where we deem appropriate, including for violations of this TOS or in response to a user complaint. Without limiting the foregoing, Shift Messenger and its designees shall have the right (but not the obligation) to remove any of Your Data that violates the TOS or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of Your Data, including any reliance on the accuracy, completeness, or usefulness of Your Data.
- You acknowledge, consent and agree that Shift Messenger may access, preserve and disclose your account information and Your Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any of Your Data violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Shift Messenger, its users and the public.
8. Term; Termination.
- This TOS will continue in full effect unless and until your account or this TOS is terminated as described herein. Service plans that are paid monthly will automatically renew for one additional month, and Service plans that are paid annually will automatically renew for one additional year. You have the right to leave an Organization using the interface provided by the service. Only Organization Administrators can deactivate and delete Organization accounts.
- We reserve the right to deactivate and delete your account (or the access privileges of any Member) and terminate this TOS at any time for any reason, or no reason, with or without notice. Without limiting the foregoing, Shift Messenger may, in its sole discretion, publish policies whereby we delete your account for prolonged inactivity. Upon any termination of this TOS, we will have no obligation to maintain or provide Your Data.
- All accrued rights to payment and the terms of Section 5 and Sections 9 through 20 shall survive termination of this TOS.
9. Disclaimer of Warranties.
- The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but Shift Messenger shall use reasonable efforts to provide advance notice of any material scheduled service disruption. Further, you understand that Your Data may be transmitted or handled in an unencrypted manner if you choose to use unencrypted gateways to connect to the Service. Additionally, while Shift Messenger takes steps to ensure that information provided to its third party vendors and hosting partners is transmitted using reasonable security measures, it does not guarantee that these transmissions will be encrypted. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Data. Shift Messenger will have no liability to you for any unauthorized access or use of any of Your Data, or any corruption, deletion, destruction or loss of any of Your Data.
- THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SHIFT MESSENGER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SHIFT MESSENGER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM SHIFT MESSENGER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
10. Limitation of Liability.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL SHIFT MESSENGER BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, SHIFT MESSENGER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- You shall defend, indemnify, and hold harmless Shift Messenger from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Data, or your (and your Members’) use or misuse of the Service. Shift Messenger shall provide notice to you of any such claim, suit or demand. Shift Messenger reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Shift Messenger’s defense of such matters.
- If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
13. Integration, Modification, and Authority.
- This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Shift Messenger in any respect whatsoever.
- You may not assign this TOS without the prior written consent of Shift Messenger, except, if you are a company or other legal entity, you may assign this TOS in connection with a merger, re-organization or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days prior notice to Shift Messenger. Shift Messenger may assign or transfer this TOS, in whole or in part, without restriction.
- Except as otherwise set forth herein, all notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
16. Choice of Law and Forum.
- The TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law.
17. Waiver and Severability of Terms.
- The failure of Shift Messenger to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.
18. No Right of Survivorship and Non-Transferability.
- If you are a living person, you agree that your account is non-transferable and your rights to the content within your account terminate upon your death, however the content may thereafter be available and accessible by Administrative Users.
19. Export Controls.
- The Shift Messenger Services originate in the United States, and are subject to United States export laws and regulations. The Service may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Services may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Services and the Service.
20. Dispute Resolution/Arbitration.
- Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SHIFT MESSENGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.