Terms of Service

PLEASE READ THIS DOCUMENT CAREFULLY. Shift Media Holdings, Inc. and our affiliate and subsidiary entities (“SHIFT”, “we”, “us”, or “our”) through our online properties (“Sites”) such as SHIFT, MediaSilo, Wiredrive, SafeStream and Screeners.com offer online video sharing, collaboration and workflow platforms through our websites, mobile applications, connected TV applications, and other online services (collectively the "Services"). By registering as a member or by using the Services in any way, you (“Customer" or “you”) accept these Terms of Service ("Agreement"), which forms a binding agreement between you and us. If you do not wish to be bound by this Agreement, do not use the Services.

‍

1. Term

This Agreement begins on the date you first use the Services and continues as long as you have an account with us (the “Term”). We offer free Services as well as paid subscriptions. For paid subscriptions the Term and other conditions, including but not limited to payment terms, are set forth in the order being placed at the time that this Agreement is accepted by Customer (the “Order”).

‍

2. Services

We grant you a limited, non-exclusive license to access and use the Services during the Term subject to our Terms of Service. You must be at least 18 years old to use the Services. By utilizing the Services, Customer agrees that its content, may be transferred unencrypted over various networks and undergo changes to conform and adapt to technical requirements of connecting networks and devices. Customer further acknowledges that SHIFT may modify the Services and add or delete features, functions and Services from time to time in its sole discretion. Except as expressly permitted by us in writing, you will not scrape, reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Services or any source code therein. Nor will you attempt to circumvent any of SHIFT's technical measures or take any measures to interfere with or damage the Services. All rights not expressly granted by SHIFT are reserved.

‍

3. Privacy

Your privacy rights are set forth in our Privacy Policy, which forms a part of this Agreement. Please review the Privacy Policy to learn about:

• What information we may collect about you;
• What we use that information for; and
• With whom we share that information.
  ‍

4. Payment Terms

For paid accounts, payment terms are as set forth in the Order. If any payment due pursuant to the Order is not received by SHIFT within thirty (30) days of its due date, SHIFT may in its sole discretion terminate this Agreement and permanently delete all the files that Customer has uploaded using the Service with no further responsibility or liability with respect thereto.

‍

5. Taxes and fees

Customer shall be responsible for any applicable federal, state or local use, excise, sales or other taxes, fees, assessments, including without limitation universal service assessments or similar amounts in connection with any service furnished to Customer. Customer shall pay all taxes directly to the taxing authority unless the taxing authority requires that SHIFT collect and remit payment, in which event SHIFT may charge Customer’s credit card for such amounts and remit them to the authority. If applicable, SHIFT will exempt Customer in accordance with law, effective on the date SHIFT receives a valid exemption certificate from Customer.
‍

6. Termination Rights

(a) Either party may terminate this Agreement for Cause. “Cause” means a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of the breach notice. (b) SHIFT may discontinue service and/or terminate this Agreement immediately upon notice to Customer if Customer provides false information to SHIFT regarding the Customer’s identity, creditworthiness or planned use of the Services. SHIFT may discontinue service immediately, without notice, if interruption of service is necessary to prevent or protect against fraud or infringement of third-party intellectual property rights or rights of privacy or publicity or to protect SHIFT’s personnel, facilities or services.

‍

7. Early service termination

If Customer has ordered Services for a 12-month Term or longer, and (a) Customer terminates this Agreement or the Order during the Term for reasons other than Cause, or (b) SHIFT terminates this Agreement or the Order for Cause, then Customer will pay SHIFT, within thirty (30) days after such termination, (i) all past due but unpaid charges and interest incurred through the date of termination, plus (ii) the sum of: (A) one hundred percent (100%) of any unpaid fees that would have been incurred for the ordered Service for months 1-12 of the Term, plus (B) eighty percent (80%) of any unpaid fees that would have been incurred for the ordered Service for months 13-–24 of the ordered Term; plus (C) any disconnection, early cancellation or termination charges incurred and paid to third parties by SHIFT on account of Customer; plus (D) any additional amount specifically set forth in the Order. The parties agree that the precise damages resulting from an early termination by Customer are difficult to ascertain, and the early termination fees are a reasonable estimate of anticipated actual damages and not a penalty. SHIFT may collect the payments required hereunder by charging Customer’s credit card. SHIFT may terminate the Services at any time, in which case SHIFT’s sole responsibility shall be to refund any fees collected for Services not yet provided and to permit Customer to retrieve its files for five (5) days after SHIFT provides notice of termination to Customer.

‍

8. Limitation of Liability

SHIFT’s total liability to Customer in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) proven direct damages or (b) the aggregate amount of payments made by Customer to SHIFT for the Service during the twelve (12) month period immediately preceding the month in which the circumstances giving rise to the claim occurred.

‍

9. Indemnification

Customer shall indemnify, defend and hold harmless SHIFT and its affiliates, employees, directors, officers, representatives, subcontractors, interconnection service providers, suppliers and agents (“Indemnified Parties”) from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements (collectively, “Claims”), to the extent any such Claim is asserted by a third party against any Indemnified Party, directly or indirectly, by reason of or resulting from any Customer failure to perform an obligation under this Agreement or any action or inaction of Customer or its employees or agents that is illegal or constitutes negligence or intentional misconduct, or as a result of: (a) claims for libel, slander, infringement of copyright or unauthorized use of trademark, logo, trade name or service mark arising out of use of any service; (b) claims for patent or copyright infringement arising from using SHIFT’s Services; (c) claims for damage to property and/or personal injuries (including death) arising out of the negligence or willful act or omission of Customer; and (d) claims that the content (including its receipt, possession, transmission or processing under this Agreement), or the actions of Customer violate any law or regulation, any privacy rights of a third party, or any acceptable use policies or other content guidelines promulgated by SHIFT from time to time.

‍

10. Disclaimer of Warranties

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SHIFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SHIFT SERVICES, SOFTWARE OR DOCUMENTATION. SHIFT SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

‍

11. Disclaimer of Certain Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

‍

12. Force Majeure

Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure to fulfill obligations under this Agreement due to causes beyond a Party’s reasonable control, including but not limited to: acts of God, flood, extreme weather, fire or other natural calamity, terrorist attack, any law, order regulation or action of any governmental entity or civil or military authority, power or utility failures, fiber or cable cuts, service outages by third party providers unaffiliated with SHIFT, national emergencies, riots, wars, strikes, lock-outs work stoppages or other labor difficulties.

‍

13. No Joint Undertaking

SHIFT and Customer are independent parties and shall not be deemed or construed, by virtue of this Agreement, to be the employee, representative, partner, or joint venturer of the other.

‍

14. Confidentiality

Commencing on the Effective Date and continuing until the date which is three (3) years after the termination of this Agreement, each Party shall protect as confidential and shall not disclose to any third party, any confidential or proprietary information (“Confidential Information”) received from the disclosing Party or otherwise discovered or received by the receiving Party during the term of this Agreement. Confidential Information shall include any documents or material marked Confidential, and shall additionally include but not be limited to the pricing and terms of this Agreement, and any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans. The Parties shall use Confidential Information only for the purpose of this Agreement.

‍

15. Service marks, trademarks, and publicity

Neither SHIFT nor Customer shall: (a) use any service mark or trademark of the other Party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains the other Party’s prior written approval.

‍

16. Customer content

Customer represents and warrants that it has all rights and licenses necessary to upload its content via the Services and to permit SHIFT to store, process and transmit such content pursuant to this Agreement. Customer is solely responsible for any and all content that it uploads or processes through the Services and shall comply with all acceptable use policies or other content guidelines promulgated by SHIFT from time to time. You agree not to upload, share or display any material that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or which violates any party's intellectual property rights or rights of privacy or publicity. SHIFT shall have no obligation to monitor such content, and the acceptance or processing of any content via the Services shall not be construed as SHIFT’s approval of any particular content. SHIFT may, but has no obligation to, remove files (i) containing content that in our opinion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or which violate, or are become subject to a claim that such content violates, any party's intellectual property rights or rights of privacy or publicity or (ii) if necessary to protect the rights of SHIFT or any third party.

‍

17. Intellectual property rights

SHIFT claims no ownership rights with respect to the material you upload using our Service. However, by uploading digital assets and item descriptions, you grant SHIFT a license to permit internet users to view them (subject to any password protection that you employ using the facilities of the Service) and to display and store them and to review them for compliance with these terms. Customer is responsible for keeping its password secure. SHIFT cannot be liable for any loss or damage from Customer’s failure to maintain the security of its account and password.

‍

18. Assignment

Customer may not assign this Agreement without the express prior written permission of SHIFT, provided that consent shall not be unreasonably withheld. SHIFT may assign this Agreement in whole or in part to any successor or affiliate upon written notice to Customer.

‍

19. Governing Law

This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its choice of law principles.

‍

20. Notices

All notices (including copies of any Customer notices of disconnect provided as set forth in Section 6), requests, or other communications (excluding invoices) shall be in writing and either transmitted via overnight courier, electronic mail, hand delivery or certified or registered mail, postage prepaid and return receipt requested to the Parties at the following addresses: Notices will be deemed to have been given when received. CUSTOMER: To address provided in the Order. SHIFT: 374 Congress Street, Suite 506, Boston, MA 02210

‍

21. Entire agreement; modification of terms and services

This Agreement, including the Order, constitutes the entire agreement of the Parties, and supersedes any written or oral prior agreements or understandings relating to the subject matter of this Agreement. SHIFT may modify these terms, including its pricing (other than prices that apply during the initial Term of an Agreement) from time to time by posting the changes to the SHIFT Site (www.SHIFT.io). Customer is advised to review these terms from time to time on the SHIFT Site. Any modification will be binding upon Customer, provided that if SHIFT makes any changes to these terms which affect Customer in a material and adverse manner, Customer, as its sole remedy, may discontinue the Service without liability by providing SHIFT with written notice of discontinuance within sixty (60) days of such change.

‍

22. Third-party apps

If Customer utilizes the Services by means of third-party applications, SHIFT shall not be responsible for service outages or data loss arising as a result of those third-party apps even if the app is purchased from or through SHIFT. Customer shall look only to the publisher of the app for recourse for data loss or lost service time caused by such apps.

‍