1 . Overview
These terms of service (“Terms of Service”) are entered into between you and ShiftIn Marketing, LLC dba ShiftIn Marketing (“ShiftIn Marketing,” “we,” or “us”). The Terms of Service govern your access to and use of the ShiftIn Marketing CRM website at www.ShiftInMarketing.com and https://app.ShiftInMarketing.com, including any content, functionality, communication channels, software, and Services offered on or through it (the “Platform”).
By using the Platform, you agree to be bound and abide by these Terms of Service. ShiftIn Marketing may terminate your ability to use the Platform without notice if you do not comply with these Terms of Service. If you do not agree to these Terms of Service, you must not access or use the Platform. You must be at least 18 years old to use the Platform.
ShiftIn Marketing reserves the right to make changes to the Platform and to these Terms of Service at any time. All changes are effective immediately when posted. Your continued use of the Platform following the posting of the revised Terms of Service means that you accept and agree to the changes.
All Information ShiftIn Marketing collects on the Platform is subject to our Privacy Notice posted on the Platform. By using the Platform, you consent to all actions taken by us with respect to your Information in compliance with the Privacy Notice. The Privacy Notice is incorporated into and governed by these Terms of Service. To the extent there is a conflict, these Terms of Service supersede the Privacy Notice. You agree that you will not upload any confidential or personal information onto the Platform except for personal information specifically requested by ShiftIn Marketing pursuant to the Privacy Notice.
All Platform Content (as defined below) is current as of the date it is posted on the Platform to the best of ShiftIn Marketing’s knowledge.
As used in these Terms of Service, references to the “ShiftIn Marketing Team” include ShiftIn Marketing, ShiftIn CRM, our owners, assigns, subsidiaries, affiliated companies, officers, and directors, and all parties involved in creating, producing, and/or delivering the Platform.
2 . Services
ShiftIn Marketing provides a multitude of product integrations and services (the “Services”) on the Platform, which you may subscribe to through the Platform. All references to the Platform include the Services. All Services are subject to these Terms of Service as well as the additional provisions below. The terms in these Terms of Service govern to the extent there is a direct conflict between the additional terms linked below and these Terms of Service.
1. Right to Modify the Services. We reserve the right to implement new elements as part of the Services including changes that may affect the previous mode of operation of the Services. We believe that any such modifications will enhance the overall Services, but it is possible that your opinion may vary.
2. No Contingency on Further Releases and Improvements. You understand that your purchase of Services on or through the Platform is not contingent on the delivery by us of any future release of any functionality or feature, including but not limited to the continuation of a certain Service beyond its current subscription term, or any third-party services.
3. As-Is. The Platform is provided on an as-is basis as further described in Section 21, except as expressly provided otherwise in this Agreement.
4. Features and terms used in connection with the Platform and Services such as “power dialer” may have some resemblance to those provided by others, but our Platform features and terms are specific to our Platform.
5.Additional Terms. Additional terms may apply to specific services and programs offered by ShiftIn Marketing on the Platform. To the extent there is a conflict, these Terms of Service will take precedence. The terms for the ShiftIn Marketing affiliate program are available here: https://ShiftInMarketing.com/affiliate-policy.
3 . Intellectual Property
The Platform and its entire content, data, features, Services, and functionality (including but not limited to text, graphics, videos, logos, button icons, databases, music, sounds, images, or other material that can be viewed on the Platform) (“Platform Content”) are the property of ShiftIn Marketing or its licensors and are protected by copyright, trademark and other intellectual property laws, except as indicated below. Platform Content does not include User Contribution(s), as defined below.
The ShiftIn Marketing name and related logos are trademarks and service marks (“Marks”) of ShiftIn Marketing. ShiftIn Marketing Marks may not be used without advance written permission of ShiftIn Marketing, including in connection with any product or service that is not provided by ShiftIn Marketing, or in any manner that is likely to cause confusion, or in any manner that disparages, discredits, or misrepresents ShiftIn Marketing. Other products or company names mentioned on the Platform may be trademarks or service marks of their respective owners.
A third-party website may feature our logos or trademarks, with or without authorization. Our logos or trademarks featured in any third-party website do not constitute or imply any approval, sponsorship, or endorsement of ShiftIn Marketing.
If you believe that any content on the Platform violates your intellectual property rights, please notify ShiftIn Marketing as described in Sections 18 and 31.
4 . Limited License And Prohibited Uses
ShiftIn Marketing grants you a personal, royalty-free, non-assignable, revocable, and non-exclusive license to access and use the Platform Content while using the Platform. Except to make the Services available to you and your end users, as expressly permitted under these Terms of Service, any other use, including the reproduction, modification, distribution, transmission, republication, framing, display or performance of Platform Content without prior permission of ShiftIn Marketing is strictly prohibited. You may not remove any Marks or other proprietary notices, including, without limitation, attribution information, credits, and copyright notices that have been placed on or near the Platform Content.
You, your employees, and your end user clients (“Clients”) may use the Platform only for lawful purposes and in accordance with these Terms of Service. You agree that you, your employees, and your Clients will not:
5 . Customer/End User Conduct
In connection with your use of the Platform or Services, you agree that:
<br/ >6 . Your Use Of Communications Features of the Services <br/ ><br/ >ShiftIn Marketing is the provider of Services for your use, which may include certain communications features such as SMS, MMS, email, voice call capabilities and other methods. You agree that:
7 . Payment
1. Fees. If you choose to purchase one or more of the Services provided on the Platform, you agree to pay all fees (“Fees”) associated with the Services. Our monthly subscription provides tiered pricing for different levels of Services and products based on the Services you choose to use. In addition to our monthly subscription Services, you may purchase add-in Services for a one-time Fee or recurring subscription Fees. Fees may change from time to time. All Fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges associated with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice. All Fees and Communications Surcharges are nonrefundable.
If you are passing the obligation to pay Platform-related Fees to your Clients, you are solely responsible for all related transactions, including but not limited to refunds and charge backs of such Fees that are passed on. ShiftIn Marketing is not responsible for resolving issues related to costs passed on to your Clients. Any fees passed on to Clients or other third parties must be amounts charged by ShiftIn Marketing, without increase or markup.
Taxes. You are exclusively responsible for taxes and other governmental assessments (“Taxe s”) associated with your use of the Platform, including all Taxes associated with the Services you order and any transactions you conduct with your Clients. ShiftIn Marketing may collect Taxes from you as part of the Fees as it deems appropriate, and all ShiftIn Marketing determinations regarding what Taxes to collect are final. ShiftIn Marketing may recalculate and collect additional Taxes from you if it determines at any point that they are due. You will indemnify ShiftIn Marketing for all Claims related to Taxes that are associated with your activities on the Platform, including any Taxes related to your transactions with your Clients, as described in Section 22. Taxes, like all Fees, are nonrefundable.
2. Overdue Amounts. If, for any reason, your credit card company declines or otherwise refuses to pay the amount owed for the Services you have purchased, you agree that we may suspend or terminate performance of Services or delivery of products and may require you to pay any overdue Fees and other amounts incurred (including any third-party chargeback fees or penalties) by other means acceptable to us. In the event legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorney fees and other legal expenses.
3. Payment Disputes. You will notify us in writing within sixty (30) days of the date we bill you for any invoiced charges that you wish to dispute. You must pay all invoiced charges while the dispute is pending or you waive the right to pursue the dispute. Where you are disputing any fees, you must act reasonably and in good faith and cooperate diligently with us to resolve the dispute. All ShiftIn Marketing determinations regarding your obligation to pay invoiced charges are final.
4. No Refunds. Except as described below, all Fees assessed by ShiftIn Marketing are non-refundable, and ShiftIn Marketing does not provide Fee refunds or credits for partially used or unused subscriptions. If you sign up for a Service subscription but do not access the Service or Platform, you are still responsible for all Fees during the term of your subscription. If ShiftIn Marketing chooses at its sole discretion to issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
We reserve the right to issue refunds or credits at our sole discretion in the following situations:
1. Where we materially modify these Terms of Service or Privacy Notice during a billing period and such modification adversely affects you, we may refund a portion of your subscription Fee equal to the remaining unused term, as we determine appropriate or as may be required by applicable law. To be eligible for a refund, you must provide written notice that (a) identifies your account and (b) requests cancellation of the specific Service. The cancellation will be effective upon our receipt of your notice and our determination that you are authorized to effect such cancellation. Please refer to the “Communications and Contact Information” section below on how to provide notice to us.
2. Where a modification or interruption of Services adversely affects you and alternative remedies, as specified in these Terms of Service, are not available, we may refund a portion of your paid subscription Fee equal to the remaining unused term of your subscription, as we determine appropriate or as may be required by applicable law.
8 . Resale of Services (MAP Policy)
1. Minimum Advertised Price. You cannot advertise access to the Platform for a price of less than $97 per month (the “MAP”).
2. Determining Advertised Price. The price at which you are advertising access to the Platform is determined after deduction of coupon discounts, rebates, value of product giveaways, gift card amounts, and other promotional offers, that have the effect of lowering an advertised price.
3. Media. This MAP policy applies to advertising in any media. However, this policy does not apply to advertising at a brick-and-mortar selling location that is not distributed or visible to customers outside that location, or final sale prices first disclosed to customers in “shopping carts” in web-based sales (so long as such prices cannot be retrieved by search engines or otherwise displayed to other customers).
4. Changes. The MAP is established by ShiftIn Marketing and may be changed by ShiftIn Marketing from time to time in its sole discretion. Any changes to the MAP will be communicated by a change to this section of these Terms of Service. ShiftIn Marketing may also notify you of any change to the MAP.
5. Final Sale Price. This MAP policy applies only to the prices at which you advertise access to the Platform and does not restrict your ability to set the final price at which you resell access to the Platform. ShiftIn Marketing will not sanction or otherwise penalize you solely for reselling access to the Platform below the MAP.
6. Exceptions. This MAP policy does not apply to advertising within any jurisdiction in which minimum advertised price policies are prohibited by law. It is a violation of this policy, however, to transmit an advertised price less than the MAP from any such jurisdiction to customers in any jurisdiction in which the policy is permissible.
7. European Union and United Kingdom. For sales into the European Union and United Kingdom, this MAP policy does not prohibit you from offering consumers discounts or communicating to consumers that their final price could differ from the MAP.
8.Resale Restrictions. When reselling the service, you agree that you are fully liable to your resale Clients for the Service and will handle all disputes and inquiries they have without any involvement from ShiftIn Marketing, unless ShiftIn Marketing offers to assist.
9. You Are Not ShiftIn Marketing. Do not present yourself as ShiftIn Marketing when reselling the Service, hold yourself out as a representative of ShiftIn Marketing, or indicate that you are associated with ShiftIn Marketing in any way. Do not direct your resale Clients to contact ShiftIn Marketing for any reason, including for Service support.
10.Suspension and Termination. We may suspend or terminate your ability to resell Services as described in this section in our sole discretion and with or without advance notice to you if we determine that you are violating this Agreement or for any other reason.
9 . Excessive Data Usage
Your excessive data use may cause the Service to be slow or unavailable. We have no liability for the effect that your excessive data use may have on Service performance. We may (1) suspend or terminate your use of the Service or (2) reduce the amount of data you are able to use, with or without advance notice, if we determine in our sole discretion that your data use is excessive, abusive or has a negative effect on the Services in any way.
We provide the Service on a tiered-pricing basis, and some tiers can process more data with less impact on Service performance. Contact us if you would like more information about pricing for data usage that may be more appropriate for your needs.
10 . Training
ShiftIn Marketing may offer training to you related to how to use the Services. All training and associated information conveyed as part of it (“Training”) is as-is, with no warranty, as explained further in Section 21 (Disclaimer). You know your own situation and your Clients, and you alone are responsible for how and whether you adopt any strategies learned through Training. ShiftIn Marketing makes no guarantees that Training will produce any particular outcome, and Training may in rare cases be counterproductive depending on your situation.
11 . Data Storage
Subject to our Privacy Notice , you agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted on or through the Platform. You acknowledge that we reserve the right to remove or terminate accounts that have not paid a subscription Fee, that remain inactive for longer than one (1) year, or that have violated one or more terms of this Agreement.
12 . Account Registration
To access portions of the Platform or to register for or use the Services, you will be asked to provide registration details or other Information. It is a condition of your use of the Platform that all Information you provide is complete, current, and accurate. All Information you provide to register with the Platform, complete a transaction through the Platform, or otherwise is governed by our Privacy Notice, and you consent to all actions ShiftIn Marketing takes with respect to your Information consistent with our Privacy Notice.
13 . Use and Protection of Login Credentials
You are responsible for maintaining the confidentiality of your user name and password (“Login Credentials”). You are responsible for all uses of your account and Login Credentials, whether or not authorized by you. You agree to notify ShiftIn Marketing immediately of any unauthorized access to or use of your account or Login Credentials or any other breach of security. ShiftIn Marketing reserves the right to disable your Login Credentials at any time in its sole discretion for any or no reason, including if, in ShiftIn Marketing’s opinion, you have violated any provision of these Terms of Service. User accounts are non-transferable, and all users are obligated to take preventative measures to prohibit unauthorized users from accessing the Platform with his or her password.
14 . User Contributions
To ask questions about this Privacy Notice and our privacy practices, contact us at info@ShiftInMarketing.com by mail at:
ShiftIn Marketing Digital, LLC
ATTN: Legal Department
9450 SW Gemini Drive
Suite 46801
Beaverton, OR 97008-7105
EFFECTIVE DATE: August 28, 2024
By posting information on the Platform, or by otherwise using any communications service, message board, newsgroup, or other interactive service available on the Platform, you agree that you will not post comments, messages, links, code, or other information that:
We are not responsible or liable to any third party for the content or accuracy of any User Contribution posted by you or any other user of the Platform, nor do we endorse the User Contribution of third parties. Further, we are not responsible for any failure or delay in removing such postings. While we do not monitor User Contributions, at our sole discretion, ShiftIn Marketing may choose to unpublish or otherwise make not available for public viewing any material we deem unnecessary or inappropriate for use on our Platform.
15 . User Customization
Portions of the Platform may be modified by you, incorporating your name, logo, trademark, and color scheme into your individual access area within the Platform. You are solely responsible for copyright, trademark or other intellectual property concerns connected with your and your Clients’ customized look and feel of the Platform. You acknowledge that you may not be able to customize the Platform according to your unique branding to the extent that your customization would appear to be independently developed. ShiftIn Marketing may remove any of your modifications at any time without advance notice and with no liability to you.
16 . Promotions
From time to time, this Platform may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on this Platform. Any such correspondence or promotions, including the delivery of and the payment for goods and services by those third parties, and any other terms, conditions, warranties or representations associated therewith, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion. You will ensure that these activities comply with all relevant laws.
17 . Content You Create and Your Contacts
You own and retain all ownership rights to your data and User Contributions uploaded to the Service (“Your Data”), including but not limited to information such as contact lists (including email addresses and phone numbers of your contacts) and other content. We acknowledge your ownership rights in such contact lists and content. You grant us, the ShiftIn Marketing Team, and our service providers the right to use Your Data as necessary to provide the Services to you and as permitted by these Terms of Service and our Privacy Notice. You also grant ShiftIn Marketing the right to use Your Data to improve the Service, develop new services, and for other ShiftIn Marketing business purposes, subject to ShiftIn Marketing’s obligation to maintain the confidentiality of Your Data. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. Subject to the limited license granted, we acquire no right, title or interest from you or your licensors under these Terms of Service.
Limits on ShiftIn Marketing. We will never sell or rent your contact lists to anyone without your permission. We will not use your data from your contact list to contact any individual or company except as you direct or otherwise permit. You acknowledge that ShiftIn Marketing may obtain lists of contact data from other sources that could match data included in your contact list; such data would not be considered as part of this limitation. ShiftIn Marketing is under no obligation to ensure that data obtain from other sources is not present within your contact list.
Submission of Ideas. The Platform may include a platform through which users may submit ideas in connection with new products, Services and/or related features (each, an “Idea”). By submitting an Idea to ShiftIn Marketing, you agree to the following unless we have mutually agreed in writing otherwise:
18 . Copyright; Digital Millennium Copyright Act
If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below.
We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to info@ShiftInMarketing.com (Subject line: “DMCA Takedown Request”) and mailed to the designated copyright agent address below.
Our designated copyright agent to receive DMCA Notices is:
ShiftIn Marketing Digital, LLC
ATTN: Copyright Agent
9450 SW Gemini Drive
Suite 46801
Beaverton, OR 97008-7105
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If you believe that your User Contribution that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload or display the content in your User Contribution, you may send a written counter-notice containing the following information to the above-listed Copyright Agent:
If a counter-notice is received by our copyright agent, we will send a copy of the counter-notice to the original complaining party, informing that person that ShiftIn Marketing may repost the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be reposted, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
We may, at our sole discretion, limit access to the Platform and/or terminate the account of any user who infringes any intellectual property rights of others.
19 . Third Party Content
This Platform may include content provided by third parties. All statements and opinions expressed by third parties are solely the opinions and the responsibility of the person or entity providing those materials. Those materials do not necessarily reflect the opinion of ShiftIn Marketing. ShiftIn Marketing is not responsible for the content or accuracy of any materials provided by any third parties.
20 . Links To Other Web Sites
ShiftIn Marketing may provide links to external web sites for the convenience of Platform users. The inclusion of an external link on this Platform does not constitute or imply support or endorsement of any kind. ShiftIn Marketing does not control those web sites, is not responsible for their content or function, and is not responsible for any loss or damage that may arise from your use of them. If you decide to access the third-party sites linked to this Platform, you do so entirely at your own risk and subject to the terms and conditions of use and the privacy notice for such sites.
21 . Disclaimer
THE PLATFORM AND THE SERVICES OFFERED THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE PLATFORM, PLATFORM CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE PLATFORM CONTENT, SERVICES OR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONTENT OR SERVICES OFFERED WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PLATFORM CONTENT OR SERVICES PURCHASED OR OBTAINED BY YOU FROM THE PLATFORM, FROM US OR THE SHIFTIN MARKETING TEAM WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
YOU ACKNOWLEDGE THAT THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF YOUR DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK.
THIS PLATFORM COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE PLATFORM CONTENT AND SERVICES ON OR THROUGH THE PLATFORM, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE CONTENT OR PRODUCTS AVAILABLE ON THE PLATFORM MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH CONTENT OR PRODUCTS.
THE USE OF THE PLATFORM, THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY PRODUCTS OR PLATFORM CONTENT THROUGH THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Through your use of the Platform, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any products or services provided by YOUR OR any third party, including, but not limited to the purchase terms, payment terms, warranties, guarantees relating to such transactions, are solely between the seller OR PURCHASER of such merchandise OR SERVICE and you.
WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH A THIRD PARTY, OR IN CONNECTION WITH THE PLATFORM, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY SERVICES OR CONTENT AVAILABLE ON OR THROUGH THE PLATFORM FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR THE SHIFTIN MARKETING TEAM.
WE RESERVE THE SOLE RIGHT TO EITHER MODIFY OR DISCONTINUE THE PLATFORM, INCLUDING ANY SERVICES OR FEATURES THEREIN, AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD WE EXERCISE SUCH RIGHT. MODIFICATIONS MAY INCLUDE, BUT ARE NOT LIMITED TO, CHANGES IN THE PRICING STRUCTURE AND THE ADDITION OF FREE OR FEE-BASED SERVICES. ANY NEW FEATURES THAT AUGMENT OR ENHANCE THE THEN-CURRENT SERVICES ON THIS PLATFORM SHALL ALSO BE SUBJECT TO THESE TERMS OF SERVICE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. PLEASE CONSULT THE LAWS IN YOUR JURISDICTION
22 . Limitation of Liability, Indemnification, and Mitigation
Your exclusive remedy and our entire liability, if any, for any claims arising out of these Terms of Service and your use of the Platform or the Services shall be limited to the amount you paid us for Services purchased on the Platform during the three (3) month period before the act giving rise to the liability.
IN NO EVENT SHALL SHIFTIN MARKETING BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM MALICIOUS CODE, LOSS OF USE, DATA OR PROFIT LOSS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PLATFORM OR OF ANY WEBSITE REFERENCED OR LINKED TO FROM THE PLATFORM.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY PROMISES AND/OR STATEMENTS REGARDING OUR SERVICES OR CONTENT OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS WITH THE THIRD PARTY THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. PLEASE CONSULT THE LAWS IN YOUR JURISDICTION.
You agree to defend, indemnify, and hold harmless ShiftIn Marketing and the ShiftIn Marketing Team against all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with your use of the Platform or Services (“Claims”), including, but not limited to: (a) our use of or reliance on information or data supplied or to be supplied by you, your employees, agents, or Clients; (b) any breach of or default under these Terms of Service by you, your employees, agents, or Clients; (c) the wrongful use or possession of any ShiftIn Marketing property by you, your employees, agents, or Clients; (d) any negligence, gross negligence or willful misconduct by you or your employees, agents, or Clients; (e) misrepresentations by you, your employees, agents, or Clients (f) violation(s) of applicable law by you, your employees, agents, or Clients, (g) your actions and the actions of your employees, agents, or Clients; (h) the acts or omissions of you, your employees, agents, or Clients in connection with providing notice and obtaining consents regarding the origination or content of the SMS or MMS messages, email or other communications using the Services, (i) Taxes and other Fees and/or (j) any disputes between (1) you and other users, (2) you and your Client(s), and/or (3) your Clients.
If any of the Services or Platform are, or in our opinion are likely to be, claimed to violate any third-party intellectual property right, at our option we may: (a) obtain the right for you to continue to use the Services and Platform as contemplated by these Terms of Service; (b) modify or replace the Services or Platform, in whole or in part, to seek to make the Services or Platform non-infringing; or (c) require you to immediately cease any use of the Services and Platform, including but not limited to the ShiftIn Marketing platform.
23 . Limitation On Time To File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, THE PRIVACY NOTICE, OR THE PLATFORM MUST BE COMMENCED WITHIN THREE (3) MONTHS AFTER THE EVENT GIVING RISE TO THE ACTION OR CLAIM OCCURRED, REGARDLESS OF WHEN YOU KNEW OR SHOULD HAVE KNOWN ABOUT IT; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
24 . Injunctive Relief
You agree that a breach of these Terms of Service will cause irreparable injury to ShiftIn Marketing for which monetary damages would not be an adequate remedy and ShiftIn Marketing shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security.
25 . Waiver And Severability
No waiver by ShiftIn Marketing of a term or condition set forth in these Terms of Service shall be deemed a continuing waiver of such term or condition or a waiver of any other term or condition. Any failure of ShiftIn Marketing to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
26 . Entire Agreement
Except as noted below, these Terms of Service and our Privacy Notice constitute the sole and entire agreement between you and ShiftIn Marketing with respect to the Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform. These Terms of Service may not be altered, supplemented, or amended by the use of any other document(s).
ShiftIn Marketing may enter into a separate agreement with you. The terms of any separate agreement between you and ShiftIn Marketing will be considered a part of your entire agreement with ShiftIn Marketing. To the extent there is a conflict between these Terms of Service and the terms of your separate agreement with ShiftIn Marketing, your separate agreement with ShiftIn Marketing will control.
27 . Term and Termination
These Terms of Service will remain in full force and effect while you use the Platform or subscribe to any Services. Even after you are no longer a user of the Platform, those provisions of these Terms of Service that by their nature are intended to survive will remain binding on you, including but not limited to Sections 3, 7, 11, 14, 17, and 21 to 31 and the Privacy Notice.
28 . Applicable Law, Binding Arbitration, and Class Action Waiver
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
The laws of the State of Oregon will govern these Terms of Service and any disputes under them, without giving effect to any principles of conflicts of laws.
Any controversy or claim arising out of or relating to these Terms of Service shall be exclusively settled by arbitration administered by the American Arbitration Association in accordance with Commercial Arbitration Rules, then in effect. This arbitration provision is governed by the Federal Arbitration Act. The arbitration proceedings shall be held in Oregon City, Oregon. Any arbitration award may be entered in a court of competent jurisdiction.
All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
29 . No Bug Bounties
ShiftIn Marketing does not have a bug bounty program and does not pay bug bounties. ShiftIn Marketing prohibits any third-party access to the Platform or any ShiftIn Marketing systems or networks, including any network penetration testing, security assessment or probing, except as expressly permitted by this Agreement or as agreed to by ShiftIn Marketing in a separate agreement.
30 . Miscellaneous
31 . Communications and Contact Information
ShiftIn Marketing may contact you regarding these Terms of Use or the Privacy Notice using any Information you provide, or by any other means if you do not provide contact Information. If you no longer wish to receive communications from ShiftIn Marketing, you can click on the “unsubscribe link” provided in such communications or contact us at info@ShiftInMarketing.com.
When you enroll in the Service, you must designate a primary email address that will be used for receiving electronic communication related to these Terms of Use and the Service. ShiftIn Marketing will never send you an email requesting confidential information such as account numbers, usernames, or passwords, and you should never respond to any email requesting such information. If you receive such an email purportedly from ShiftIn Marketing, do not respond to the email and notify ShiftIn Marketing by emailing us at info@ShiftInMarketing.com.
For all other feedback, comments, requests for technical support, and other communications relating to the Platform, these Terms of Service, and the Privacy Notice, please contact us at info@ShiftInMarketing.com or by mail at:
ShiftIn Marketing, LLC
ATTN: Legal Department
9450 SW Gemini Drive
Suite 46801
Beaverton, OR 97008-7105
EFFECTIVE DATE: August 28, 2024