Terms & CONDITIONS of USE
Effective Date: March 1st, 2018
This Terms and Conditions of Use (the “Agreement”) is a legal agreement between you (an entity or person) (“You”) and Shimmur, Inc. d/b/a Digits, a Delaware corporation (referred to at times using “we”, “us” or “our”), that governs Your limited, non-exclusive, terminable right to use the Web-based Digits application (the “Web App”), and hosted services enabled or available via the Web App (collectively, the “Digits Service”) the servers and the Web App are stored on and powered by, and the computer files stored on that server. By clicking on the “Accept” button, or otherwise using the Digits Service, You agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT CLICK ACCEPT AND CANNOT USE THE DIGITS SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Services Offered by Shimmur
The Digits Service provides users the ability to (i) send and receive text messages to groups or individuals by using both a ten-digit phone number provided by SHIMMUR (the “SHIMMUR Phone Number”). These services can be used from any location via SHIMMUR’s Web App on any device that can access the Internet. Additionally, SHIMMUR offers other services associated with providing text messaging capability; such services include conversations, targeted broadcasts, unlimited contacts, analytics, and CRM functionality. All of the foregoing service offerings are cumulatively included in the definition “Digits Service”. Because Digits Service may rely on Your internet service or connectivity, Digits Service may be subject to the limits of Your internet service. Because the Digits Service may rely on Your third-party service, any limitations in that service will also limit the manner in which You can use the Digits Service.
1. Spam Policy
SHIMMUR maintains a zero tolerance policy regarding the delivery of spam or unwanted commercial messages using the Digits Service. Notwithstanding anything else in this agreement, You will not send, cause to be sent, or facilitate the sending of Spam using the Service. Accounts that send Spam or that we believe may be facilitating Spam may be suspended and terminated, and SHIMMUR may participate in the prosecution of Spammers.
“Spam” is defined by this Agreement as any message the principal purpose of which is to promote the sale of goods or services without the prior consent of the recipient. This includes the content which has a commercial purpose or promotes a political message or objective, to the recipient, and includes advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, or advertising material for political purposes.
2. Prior Express Written Consent; Opt-out Mechanism
(a) You will not send, cause to be sent or facilitate the sending of any message or mobile communications using the Digits Service if the intended recipient has not given You prior express written consent, even if You had a previous business relationship with the intended recipient. Under no circumstances will You send Spam or any other message where You obtained the consent of the recipient as a condition to a purchase. It shall be your responsibility to first obtain prior express written consent from any recipient before sending any message or mobile communications using the Digits Service and to supply them with any required disclosures concerning messaging and data rates that may be applicable.
(b) For the purposes of this Agreement, “Prior express written consent” can either mean a) opting in to marketing via Your e-commerce website, general website or platform of your choice, b) via INCOMING SMS, MMS, call or other form of communication FROM THE CUSTOMER OR INTENDED RECIPIENT, or c) a written agreement, signed by the intended recipient, that authorizes You to deliver marketing messages using an automatic telephone dialing system or prerecorded message to the specific number authorized in the agreement. The signature may be evidenced by any electronic or digital form of signature recognized under applicable state or federal law, including any signatures that satisfy the E-SIGN Act. You will keep copies of all written agreements for at least four years from the last date that the consent was relied upon to initiate a call.
(c) You will also include an automated opt-out mechanism that will allow customers or potential customers to opt-out of receiving SMS or MMS messages if they wish not to receive any further SMS or MMS messages by, for example, permitting them to sending a “Stop” message.
3. Limited License
SHIMMUR grants You a limited, revocable, non-exclusive, non- transferable license to use the SHIMMUR software (“Software”) to access Digits Service for Your own individual, enterprise, and limited commercial use subject to the other terms of this Agreement. You agree not to resell the Software. You may not modify, reverse engineer, decompile or disassemble the Software. You may not copy, adapt, alter, modify, translate, or create derivative works of the Software without written authorization of SHIMMUR. You may not use the Software for illegal purposes or for the transmission of material that is unlawful, harassing, libelous, invasive of another’s privacy, abusive, threatening, obscene or that infringes the rights or intellectual property of others. You may not permit other individuals to use the Software, including, but not limited to, shared use via a network connection, except under the terms of this Agreement. You may not rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Software. You may not circumvent or disable any technological features or measures in the Software for protection of intellectual property rights. You may not use the Software in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. Any such forbidden use shall immediately terminate Your license to the Software.
4. Use of SHIMMUR and Your Data
In addition to other rules and regulations contained in this Agreement, You and anyone using Your SHIMMUR account are responsible for any use of the Web App, the Digits Service. You agree not to access, copy, or otherwise use Services unless such use is authorized by this Agreement or authorized in writing. You agree that any information You provide to, or enter in order to use, SHIMMUR will complete and accurate. You will not use the Digits Service in any illegal, abusive, interfering or otherwise unacceptable or inappropriate manner, including:
to violate any law, regulation or other published policy;
to violate or infringe on intellectual property, privacy, or rights of another;
to violate any agreement, rules or policies that govern the use of your mobile device;
to transmit any content that is illegal, abusive, harassing, racist, hateful, or in our sole discretion objectionable;
to transmit sexually explicit, pornographic, obscene, or other content which in our sole discretion we find objectionable;
to sell, trade, resell or otherwise exploit for any unauthorized commercial purpose or transfer any SHIMMUR account;
to stalk, harass, or harm another individual;
to impersonate another, misrepresent or falsely identify yourself;
to violate any applicable third party policies or requirements that SHIMMUR has communicated to you;
to violate in any manner the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other industry standards;
to engage in fraudulent activity with respect to third parties or otherwise using Your account to bypass phone identification systems such as those by classified advertising websites;
to engage in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act;
in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes; or
for SMS in a manner that is not designed to enhance or augment the person-to-person nature of communications.
Any electronic data and information submitted by or for you to the Digits Service, including electronic data and information submitted by or for you through your use of third party applications including e-commerce sales and transaction data, or collected and processed by or for you using the Digits Service (excluding information obtained by the Company from our content licensors or publicly available sources and provided to you, or otherwise provided by the Company to you in connection with the Digits Service) is referred to as “Your Data.” You retain full ownership to Your Data. We do not claim any ownership to any of it. You grant the Company a worldwide, perpetual license to host, copy, transmit and display Your Data as necessary for the Company to provide the Digits Service in accordance with this Agreement. You also grant to the Company a royalty-free, perpetual, worldwide, transferable, sub-licensable license to transfer Your Data to third party service providers used by the Company in providing the Digits Service. The foregoing licenses each include all necessary rights and licenses to incorporate Your Data into any content indexed and stored in the Digits Service, and by acceptance of this Agreement, You direct the Company to incorporate Your Data into such content. If we are required by a licensor to remove any indexed content, or receive information that any indexed content provided to you may violate applicable law or third-party rights, we may so notify you and in such event you will promptly remove such content from your systems.
You acknowledge that SHIMMUR has no obligation to monitor any information on the Digits Service and that SHIMMUR is not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the Digits Service.
5. Pricing, Charges, Billing and Usage
SHIMMUR will never charge You to use its Services, unless You sign up for a paid plan, which requires You to affirmatively select a plan and pay by entering Your credit card information or setting up Direct Deposit via an email Invoice. You authorize SHIMMUR to charge and/or place a hold on Your credit card with respect to any unpaid charges related to the Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and You agree that Your acceptance of this Agreement is authorization to the issuer of the credit card to pay all such amounts. You authorize SHIMMUR and/or any other company who bills products or services, or acts as billing agent for SHIMMUR to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Your credit card until such amounts are paid in full. You authorize SHIMMUR and/or any other company who bills products or services, or acts as billing agent for SHIMMUR to bill You on a recurring monthly basis on the monthly anniversary of Your initial registration for a paid SHIMMUR plan.
You will provide SHIMMUR with updated credit card information upon SHIMMUR's request and any time the information You previously provided is no longer valid. You are solely responsible for maintaining and updating the credit card information. SHIMMUR is not liable for any non- sufficient funds or other charges incurred by You as a result of such attempts to charge, and/or place holds on, Your credit card. If You mistakenly provide a debit card number, instead of a credit card number, You authorize all charges described herein to be applied to such debit card unless and until You provide a credit card number.
For paid plans, usage and monthly fees will be charged directly to the credit card You provide to us as specified in our Pricing Agreement. Except as provided below, monthly services and certain other charges are billed and charged one month in advance, and there is no proration of such charges if service is terminated on other than the last day of Your billing cycle. You agree to pay for all Digits Service. In the event that (i) You have a subscription for a paid plan to the Digits Service, (ii) You have not used the Digits Service since the beginning of the current billing cycle, and (iii) You request a refund for cancellation of Your subscription to a paid plan within 15 days of the beginning of the current billing cycle, SHIMMUR may in its sole discretion determine whether You may receive a refund for any or all of the amount billed for the Services during the current billing cycle. Notwithstanding anything in this Section 5, SHIMMUR will not refund any amount paid by You in a previous billing cycle for a subscription to a paid plan.
If You select a paid plan to the Digits Service that includes a predetermined allotment of Services (for example, a predetermined amount of messages), unless otherwise specifically provided as a part of such paid plan, any unused allotment of Services from one billing cycle will not carry over to any other billing cycle. We may bill You in a format as we determine from time to time.
Additional charges may apply for additional copies of Your bill, or for detailed information about Your usage of Digits Service.
You also remain responsible for paying Your monthly Service fee if Your Service is suspended for nonpayment.
You agree that for amounts not paid by the due date, we may charge, as a part of its rates and charges, and You agree to pay, a late payment fee of 10% or the maximum allowed by law. In the event You fail to pay billed charges when due and it becomes necessary for us to refer Your account(s) to a third party for collection, we will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover our internal collection costs.
Recipients of Your text messages sent data and messaging rates established by the recipient’s carriers.
Even though SHIMMUR offers unlimited texting under all of its paid plans, SHIMMUR may restrict the amount of messages and groups that can be sent or received per plan, per month based on fair use. SHIMMUR, in its sole discretion, may determine fair use, but in any case fair use will never be less than 10,000 text messages per month.
For SHIMMUR’s paid plans, SHIMMUR may charge a fee of $0.01 per message if texting exceeds 10,000 message for bronze, 25,000 texts for gold and 50,000 text message gold plans. Fair usage can be overcome by moving to an enterprise plan, which can be obtained by contacting firstname.lastname@example.org.
6. Portability and Reclaiming Numbers
If You are transferring an existing phone number to be Your SHIMMUR Phone Number for the Digits Service (i.e., porting a number to us), You hereby authorize us or our agents to process Your order for Our Service and to notify Your existing provider of Your decision to switch Your services to our service, and You represent that You are authorized to take this action. Not all telephone numbers are eligible for porting to us. SHIMMUR will charge, and You agree to pay, a ten-dollar ($10) fee to export Your SHIMMUR number to another service.
If Your SHIMMUR account remains inactive for thirty (30) days or more, we have the right to deactivate Your account and reclaim the SHIMMUR Phone Number that was assigned to You when You signed up to use the Services.
7. Proprietary Rights
All right, title and interest in the Digits Service, SHIMMUR Software, and any content contained therein is the exclusive property of SHIMMUR, except as otherwise stated. Unless otherwise specified, the Digits Service is for Your personal and, for users who may be businesses, limited commercial use only and You may print, copy and download any information or portion of the Web App for Your personal use only. If You copy or download any information or software from this Site, You agree that You will not remove or obscure any copyright or other notices or legends contained in any such information.
You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the Digits Service, except for the purposes expressly provided herein, without SHIMMUR’s prior written approval.
All trademarks, copyrights, patents, trade names, trade dress, service marks and logos used in connection or concerning the Digits Service or Software are proprietary to SHIMMUR. Your use of any marks on the Web App in any manner other than as authorized in this Agreement, or as authorized in writing by SHIMMUR, is strictly prohibited.
If you believe that any user has submitted content to our Digits Service that violates your copyright, please send us a notice of copyright infringement at email@example.com. It is our policy to remove such content, and in some instances where the circumstances may warrant, terminate the user accounts of repeat infringers.
8. Content License
You grant SHIMMUR a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all rights that You have as the copyright owner in any content or feedback that You provided to us.
The materials on SHIMMUR’s website are provided “as is”. SHIMMUR makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, SHIMMUR does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site, including the Digits Service or SHIMMUR Software, or otherwise relating to such materials or on any sites linked to SHIMMUR’s Site.
Since the Digits Service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, we do not guarantee that any portion of the Digits Service will be continuous or error-free. You also acknowledge and understand that we cannot guarantee that IP based communications are completely secure. Therefore, the Digits Service should not be used with any third-party services or devices such as MONITORED BURGLAR ALARMS, MONITORED FIRE ALARMS, AND/OR MEDICAL MONITORING SYSTEMS OR DEVICES.
In no event shall SHIMMUR or its suppliers be liable for any consequential, indirect, special, punitive or similar damages, including loss of data or profit, or business interruption, arising out of the use of, or inability to use, the Digits Service, even if SHIMMUR or a SHIMMUR authorized representative has been notified orally or in writing of the possibility of such damage. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF SHIMMUR OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND BUSINESS PARTNERS TO ANY PARTY, REGARDLESS OF THE TYPE OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED $100.
Any cause of action You may have with respect to Your use of the Digits Service must be commenced within one (1) year after the claim or cause of action arises. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You.
The materials appearing on SHIMMUR’s Site or App may include technical, typographical, or photographic errors. SHIMMUR does not warrant that any of the materials on its Site or App are accurate, complete, or current. SHIMMUR may make changes to the materials contained on its Site or App at any time without notice, and may at times, and in its sole discretion, revise, update, or modify the Digits Service or SHIMMUR Software. SHIMMUR however, makes no commitment of any kind to update any of the foregoing materials.
12. Assumption of Risk
You use the Internet solely at Your own risk and subject to all applicable local, state, national, and international laws and regulations. While SHIMMUR has endeavored to create a secure and reliable Digits Service, please be advised that the confidentiality of any communication or material transmitted to/from a Site or App over the Internet cannot be guaranteed. Accordingly, SHIMMUR is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Web App or App, or for the consequences of any reliance on such information. SHIMMUR shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Digits Service.
Any material downloaded or otherwise obtained through the use of the Digits Service is done at Your own discretion and risk. You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such material.
13. Your Responsibility to Protect Data and Password
It is Your responsibility to protect Your personal data and maintain the confidentiality of Your user information and password. You are also responsible for immediately notifying SHIMMUR of any unauthorized use of Your account, or breach of Your account information or password. SHIMMUR will not be liable for any loss that You may incur as a result of someone else using Your username or password, either with or without Your knowledge. To the extent allowable by law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for Your failure to safeguard user and password information and/or promptly notify SHIMMUR about unauthorized use of Your account or breach of Your account information or password.
The Web App may include links to certain websites, materials, or content developed by third parties. SHIMMUR has not reviewed all of the Web Apps linked to its Internet Site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by SHIMMUR of the Web App. Use of any such linked website is at Your own risk. SHIMMUR reserves the right in its sole and absolute discretion to discontinue links to any other sites at any time and for any reason.
15. Enforcing Security
Actual or attempted unauthorized use of any of the Digits Service may result in criminal and/or civil prosecution. For Your protection, we reserve the right to view, monitor, and record activity on the Digits Service without notice or further permission from You, to the fullest extent permitted by applicable law. This right extends to our review of message content and details pertaining to claimed violations of our Spam Policy. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Digits Service.
16. Compliance with Laws
You will use the Digits Service in full compliance with all applicable laws and regulations with regard to Your use of the Digits Service, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, individual state laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications such as SMS and MMS messages. You will not use the Digits Service in violation of any service agreement that You have with a third-party telecommunications provider.
You will indemnify and hold SHIMMUR, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint ventures and suppliers, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your breach of this Agreement, Your violation of any law, or the rights of a third party.
18. Termination of License
SHIMMUR may terminate Your right to use the Digits Service or Software with or without cause at any time, including when we feel that You are taking advantage of unlimited messaging offered under a paid plan. We would consider “taking advantage” to be use above 500 text messages per dollar spent monthly on paid plan. You may also terminate this Agreement by simply discontinuing use of the Digits Service. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on Your use of the Software as set forth in Section 3 shall survive such termination, and You agree to be bound by those terms.
19. Governing Law
ANY CLAIM RELATING TO SHIMMUR’S SITE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL. IF FOR ANY REASON A COURT OF COMPETENT JURISDICTION FINDS ANY PROVISION OF THIS AGREEMENT, OR A PORTION THEREOF, TO BE UNENFORCEABLE, THAT PROVISION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE SO AS TO AFFECT THE INTENT OF THIS AGREEMENT, AND THE REMAINDER OF THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT. A PRINTED VERSION OF THIS AGREEMENT SHALL BE ADMISSIBLE IN JUDICIAL OR ADMINISTRATIVE PROCEEDINGS.
20. Waiver of Jury Trial
EACH OF THE PARTIES WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR ARISING OUT OF THIS AGREEMENT BROUGHT BY EITHER PARTY AGAINST THE OTHER. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS AGREEMENT.
21. No Class Actions
All claims between the parties related to this Agreement will be litigated individually and You will not consolidate or seek class treatment for any claim with respect to the Services.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
22. Waiver of Compliance of this Agreement
Even if we do not require strict compliance with the Agreement in each instance, You will be obligated to comply with the Agreement. Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by You of any of the provisions of the Agreement, will in no way waive Your obligation to comply with any of the provisions of the Agreement or our ability to enforce each and every such provision as written.
Any and all waivers by SHIMMUR of any provision, condition or requirement of the Agreement will only be effective against SHIMMUR if it is in writing and signed by an authorized officer of SHIMMUR, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
23. Assignment and Delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to You. We may also substitute, by way of unilateral novation, effective upon notice to You, SHIMMUR, Inc. for any third party that assumes our rights and obligations under this Agreement.
24. No Injunctive Relief
In no event shall You seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Digits Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service.
25. Contacting Users
By using the Digits Service, You agree that we may contact You via voice call, text message or other electronic medium. In the event that any information You have provided to SHIMMUR changes, including but not limited to, Your phone number, e-mail or address, You agree to promptly update Your information.