THESE TERMS OF SERVICE (“TERMS”) GOVERN CUSTOMER USE OF THE SHIFT SERVICE. IF CUSTOMER VISITS SHIFTELEARNING.COM OR REGISTERS FOR A FREE TRIAL, FREE PLAN, OR PAID PLAN OF OUR SERVICE, THESE TERMS APPLY.
This Agreement is a legal and binding instrument entered into as of the Effective Date by and between SHIFT and Customer. SHIFT reserves the right to amend this Agreement from time to time. The most current version of this Agreement can be reviewed by clicking the “Terms of Service” hypertext link located on the SHIFT website and shall control if different than this Agreement.
Customer acknowledges that these Terms constitute a contract between Customer and SHIFT, even though it is electronic and is not physically signed by Customer and SHIFT, and that these Terms govern Customer use of the Service and supersede any other agreements between Customer and SHIFT.
By accepting these Terms, or by accessing or using the Service or Site, Customer represents and acknowledges that Customer has read, understood, and agrees to be bound by these Terms, and that the information Customer provides in registering to the Service is accurate, complete, and is or is within Customer’s right to use. If Customer is entering into these Terms on behalf of a company or another legal entity, Customer represents that Customer has the authority to bind such entity and its affiliates to these Terms, in which case the terms “Customer” or related capitalized terms herein shall refer to such entity and its affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms, Customer must not accept these Terms and may not use the Service.
1.1. SHIFT (“SHIFT” “We” or ”Our”) provides its Service (as defined below) to Customer through its web site located at www.shiftelearning.com (the “Site”), subject to these Terms.
1.2. Term means the term of this Agreement commencing on the Effective Date and continuing until the expiration of all subscription period(s), including any renewal subscription period(s) for Services.
1.3. Agreement means these Terms of Service as may be amended from time to time and any other documents incorporated by reference.
1.4. Customer means the legal entity or individual that enters into this Agreement.
1.5. Effective Date means the date of acceptance of this Agreement by Customer.
2. DESCRIPTION OF SERVICE
2.1. The “Service” includes (a) the Site, (b) the SHIFT web hosted platform, (c) the SHIFT University website, and (d) the other services provided to Customer through the Site based on the plan purchased, including all software, data, text, images, sounds, videos, audio recording, avatars, and other content made available through the Site,(collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms.
2.2. The Service may also include basic or expanded support based on the Service plan purchased. SHIFT does its very best to make the Service available as detailed in the applicable Service plan, except for: (a) planned downtime (of which Customer will be notified in advance), or (b) any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond Our control.
3. GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
3.1. Subject to the terms and conditions of these Terms, Customer agrees to access and use the Service only for Customer internal business purposes as contemplated by these Terms. Subject only to Customer limited right to access and use the Service as expressly granted to Customer here, all rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to SHIFT.
3.2. Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party without contractual permission from SHIFT, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with SHIFT, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Service in violation of these Terms.
3.3. Customer is responsible for all information, images, videos, audios, data, text, messages or other materials that Customer post or is otherwise transmitted via the Service. Customer is responsible for maintaining the confidentiality of Customer login and account, and is fully responsible for any and all activities that occur under Customer login or account. Customer agrees and acknowledges that each Customer login may only be used by one (1) person. Failure to comply may cause a concurrency error and possible data loss.
3.4. You understand that all information or materials (“Content”), whether publicly posted or privately transmitted, excluding SHIFT materials, are the sole responsibility of the Customer from which such Content originated. If you are submitting Content on behalf of one or more entities or persons (“third parties”) then you confirm and guarantee that you are authorized to act on behalf and bind such entity(s) or person to the TOS.
3.5. SHIFT´s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
4. DATA PRIVACY AND SECURITY
4.1. In providing Customer the Service we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Customer data. These safeguards include encryption of Customer data in transmission (using SSL or similar technologies), except for certain external third party integrations that do not support encryption, which Customer may link to the Service at Customer’s choice.
4.3. Under some Service Plans, We may access Customer information for billing purposes, for example, “pay per screen” billing plans that may be available on some markets.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. SHIFT and Customer shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to Customer to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. SHIFT shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from Customer.
5.2. SHIFT®, is a trademark of SHIFT. SHIFT’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of SHIFT (collectively, “Marks”), and Customer may only use such Marks to identify yourself as a customer and user of the Service; provided Customer does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent SHIFT, its services or products.
6. THIRD PARTY SERVICES
6.1. External Sites. The Service may contain links to, or otherwise may allow Customer to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If Customer decides to access and use such Other Services, be advised that Customer use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Customer data. SHIFT is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer access or use of any such Other Services, or Customer reliance on the privacy practices or other policies of such Other Services.
6.2. Integration. The Service may contain features that enable various other services (such as social media services like Facebook and Twitter) to be directly integrated into Customer SHIFT experience. To take advantage of these features, Customer will be required to register for or log into such other services on their respective websites. By enabling third party services within the Service, Customers are allowing SHIFT to pass Customer log-in information to these other services for this purpose.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1. Billing and Payments. The Service is made available on a pay-as-Customer-go basis and is charged at the start of Customer elected subscription term (generally monthly or annually). If Customer does not provide Customer credit card or other payment information to SHIFT before the expiration of any free trial or paid subscription period, Customer account may be suspended or cancelled, until payment information and charge authorization are provided. Customer will be promptly billed and, if applicable, any trial period will terminate. Thereafter, Customer subscription will renew automatically based on Customer plan’s renewal cycle. All payment information provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such payment Information as necessary. Customer hereby authorizes SHIFT, from time to time, to take steps to determine whether any debit card or credit card number provided is valid. SHIFT reserves the right to terminate this Agreement immediately in the event any payment information is found to be inaccurate, incomplete and/or not current at any time. SHIFT shall not be responsible for any overdraft charge or other fees that may be incurred by SHIFT’s use of Customer’s debit card or credit card for payment hereunder.
7.2. Modifying Customer Subscription. If Customer chooses to upgrade Customer plan during Customer elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to Customer account. Subsequently, Customer will be charged the adjusted rate on Customer next billing cycle. If Customer is on a monthly billing cycle, Customer will not see a prorated charge or credit in the current month, but Customer new billing rate will be reflected on Customer next monthly bill.
Regardless of Customer billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time or resources if Customer closes Customer account before the end of Customer subscription period.. Downgrading Customer plan level may cause the loss of content, features, or capacity of Customer account and SHIFT does not accept any liability for such loss.
7.3. Overdue charges. If Customer fails to pay Customer subscription fee on time, or if Customer credit card payment information is entered in error or does not go through for processing and Customer does not update payment information upon Our request, Customer entire subscription may be suspended or cancelled. SHIFT is not liable for any data loss upon account cancelation due to inaccurate billing information.
7.5. Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar
governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customers are responsible for paying Taxes except those assessable against SHIFT based on its income. We will invoice Customer for such Taxes if we believe we have a legal obligation to do so.
8. CANCELLATION AND TERMINATION
8.1. The account owner (as defined in the sign-up procedure) is responsible for canceling Customer account, and can cancel the account by contacting SHIFT at firstname.lastname@example.org. There are no other means of canceling Customer account. Once Customer cancels Customer account Customer will lose access to all of Customer content, and we preserve the right to delete all such content in the normal course of operation. This content cannot be recovered once Customer account is cancelled. If Customer cancels the Service before the end of Customer current paid-up subscription period no refund will be provided and Customer cancellation will take effect immediately and Customer will not be charged again.
8.2. SHIFT reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate Customer account or any part thereof (or Customer use of the Service), and remove and discard any of Customer content within the Service if we believe that Customer has violated these Terms. SHIFT will use all reasonable efforts to contact Customer directly via email to warn Customer prior to suspension or termination of Customer account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Customer use of Service, and may be referred to law enforcement authorities. SHIFT shall not be liable to Customer or any third party for any modification, suspension or discontinuation of the Service.
9. DISCLAIMER OF WARRANTIES
9.1. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHIFT 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 NONINFRINGEMENT.
CUSTOMER ACKNOWLEDGES THAT SHIFT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM SHIFT OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10. LIMITATION OF LIABILITY
10.1. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SHIFT’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES(MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY CUSTOMER OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SHIFT WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
10.3. LIMITATION ON LIABILITY. IN NO EVENT SHALL SHIFT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT, (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT SHIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHIFT’S LIABILITY HEREUNDER IS LIMITED TO $100.00.
SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
11.1. SHIFT may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agrees to be fully bound by these Terms. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties).
11.2. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void.
12. ADDITIONAL TERMS
12.1. Severability. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
12.2. Relationship of the parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
12.3. Survival. Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 8, (Cancellation and Termination), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Assignment), and 12 (Additional Terms), will survive any termination of these Terms.
12.4. Governing law. These Terms shall be governed by the laws of Costa Rica without regard to conflict of laws principles. Customer hereby expressly agree to submit to the exclusive personal jurisdiction of Costa Rica, for the purpose of resolving any dispute relating to Customer access to or use of the Service.
12.5. Entire agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either party unless agreed to in writing by both parties.
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