THIS END USER LICENSE AGREEMENT ("EULA") INCORPORATES THE BINDING INDIVIDUAL ARBITRATION AGREEMENT, CLASS ACTION WAIVER AND JURY TRIAL WAIVER IN SECTION 31 OF OUR TERMS OF SERVICE, WHICH YOU MAY OPT OUT OF WITHIN THIRTY (30) DAYS. IT ALSO CONTAINS AUTOMATIC RENEWAL TERMS, DISCLAIMERS OF WARRANTIES, A LIMITATION OF LIABILITY AND AN INDEMNITY. theSHFT ERASES MESSAGES AND DATA BY DESIGN, AND OTHER PEOPLE'S ACTIONS CAN ERASE YOUR COPY OF A CONVERSATION. PLEASE READ THE WHOLE AGREEMENT.
This summary helps you read the EULA and does not replace it. We license the theSHFT app to you for personal use. You may not copy, resell or reverse engineer it except as the law allows. The app encrypts your direct messages, group chats and calls end to end, but not Community posts, Stories or profile photos. It deletes messages on timers and when a contact removes you, and lost PINs and Recovery Phrases cannot be recovered. theSHFT Pro renews automatically until you cancel in your Apple settings. Apple is not responsible for the app, but Apple may enforce this EULA. Disputes go to individual arbitration under our Terms unless you opt out.
This End User License Agreement is a legally binding agreement between you and theSHFT LLC, an Alabama limited liability company, 212 W. Troy St., Ste B, Dothan, AL 36303, United States ("theSHFT," "we," "us" or "our"). It governs your license to use the theSHFT application for mobile devices and any web version of it we offer, including its updates and documentation (the "Licensed Application"). By tapping to agree in the Licensed Application, or by installing or using it after this EULA is shown to you, you agree to this EULA. If you do not agree, do not install or use the Licensed Application, and delete it. If you agreed to an earlier version of this EULA in the Licensed Application, that version keeps applying to you until the Licensed Application asks you to accept this version and you do (Section 30).
1.1. This EULA is part of, and is read together with, our Terms of Service, our Community Guidelines, our Community Rules and our DMCA Policy, which are incorporated into this EULA. Our Privacy Policy explains how we handle information; it is not part of this agreement, but you agree that we may handle information as it describes. Capitalized words not defined here have the meaning given in the Terms of Service.
1.2. This EULA governs the license to the software. The Terms of Service govern your use of the services the software connects to. If this EULA conflicts with the Terms of Service, the Terms of Service control, except that Section 36 of the Terms of Service controls with respect to Apple, and Section 29 of this EULA is read to match it.
1.3. Sections 27 to 37 of the Terms of Service (disclaimers, assumption of risk, limitation of liability, indemnification, dispute resolution, governing law, time limit to bring a claim, international users, state notices, Apple terms and export controls) apply to this EULA as if they were written here. Sections 18 and 20 to 27 of this EULA repeat most of them word for word; each repeated text and its original are one provision, and if they ever differ, the Terms of Service control.
3.1. THE LICENSED APPLICATION IS INTENDED SOLELY FOR ADULTS. You must be at least eighteen (18) years old, and older where our regional minimum requires (nineteen (19) in South Korea and twenty one (21) in Indonesia and Singapore). If you are over eighteen (18) but under the age of majority where you live, your parent or legal guardian must review and agree to this EULA for you, as Section 4.2 of the Terms of Service describes.
3.2. You represent that you are not barred from using the Licensed Application under the laws of the United States or of the place where you live, that you are not located in a country or region subject to comprehensive U.S. sanctions, and that you are not on any U.S. Government list of prohibited or restricted parties.
3.3. If we learn that a user is under the minimum age, we will close the account.
4.1. Subject to your compliance with this EULA and the Terms of Service, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Licensed Application on Authorized Devices, and to use any web version we offer, solely for your personal, non-commercial use and in accordance with the usage rules of the Platform Provider.
4.2. The Licensed Application is licensed, not sold. We and our licensors keep all right, title and interest in it, including all intellectual property rights. All rights not expressly granted are reserved.
You must not, and must not allow or help anyone else to:
Any violation of these restrictions is a material breach and ends your license automatically.
The Licensed Application contains open source software, each part of which is licensed under its own terms. Nothing in this EULA limits your rights under, or grants you rights that supersede, those licenses. The Licensed Application's encryption module is published at github.com/wma1101/theshft-crypto under its own license. The rest of the Licensed Application and our servers are not open source, and no independent external audit of theSHFT's code has been commissioned.
7.1. We may provide updates that fix problems, add or remove features, or are required for security or legal reasons. Some updates may be required to keep using the Licensed Application, and older versions may stop working. This EULA applies to every update unless an update comes with a different agreement.
7.2. Some features are built into the Licensed Application but switched on for some users, or at some times, from our servers. Features may be added, changed or removed as Section 18 of the Terms of Service describes.
7.3. We, not the Platform Provider, are solely responsible for any maintenance and support of the Licensed Application, as described in this EULA or as required by law. Contact support@theshft.app. We are not obligated to provide any particular level of support or response time.
8.1. CRITICAL NOTICE REGARDING ACCOUNT ACCESS. Your Recovery Phrase is the only way to restore your account. We do not have it and cannot recover, reset or regenerate it. Your PIN is checked on your device, is never sent to us (except as Privacy Policy Section 17.4 explains for versions before 9.5), and cannot be reset by us; if you forget it, you must restore your account with your Recovery Phrase. IF YOU LOSE YOUR RECOVERY PHRASE AND YOUR DEVICE, OR theSHFT'S DATA ON YOUR DEVICE IS ERASED, YOUR ACCOUNT AND ITS DATA ARE PERMANENTLY LOST.
8.2. Restoring your account on a new device signs out the old device and erases theSHFT's data on it the next time it connects, creates new encryption keys and removes any Duress PIN (a Pro feature). Your messages do not move to the new device.
8.3. You are responsible for all activity in your account that results from your failure to protect your PIN, your Recovery Phrase and your devices.
9.1. The Licensed Application utilizes end-to-end encryption for direct messages, group chats, voice calls, and video calls. The encryption stack includes X3DH (Extended Triple Diffie-Hellman) for key agreement, the Double Ratchet protocol for forward secrecy of direct message text, NaCl (Curve25519-XSalsa20-Poly1305) for message encryption, ML-KEM-768 (a NIST-standardized post-quantum key encapsulation mechanism) mixed with Curve25519 when a direct message session starts whenever the recipient's device has published a post-quantum key (message text only), Sender Keys for group messaging, and AES-256-GCM for voice and video call encryption, with a random per call key exchanged under X25519 or, for calls with older builds and with devices that have not advertised call encryption version 2, a key derived from an X25519 exchange of the two identity keys. For Groups, ML-KEM-768 protects a message key only when every member of the Group can receive it, and a key issued after a member leaves or is removed is not protected by it; Group message keys without it rely on Curve25519 alone. A direct message session with a recipient whose device has not published a post-quantum key is classical only. Calls have no forward secrecy yet and no post-quantum layer.
9.2. Stories, profile pictures and group photos are encrypted at rest with keys our servers hold and are NOT end-to-end encrypted. Community posts are not end-to-end encrypted, by design (Communities are public spaces readable by every signed in user). Your contacts list, reports and the records described in the Privacy Policy are also readable by us.
9.3. You acknowledge that: theSHFT cannot access, read, decrypt or recover your Encrypted Data; theSHFT cannot comply with any request to produce Encrypted Data it cannot decrypt; theSHFT cannot recover lost keys or data; metadata about your communications (such as who you talk to and when) is not end-to-end encrypted; compromised or unlocked devices, keyboards, other software, recipients, cameras and old backups can expose content no matter how it is encrypted; cryptographic systems may become vulnerable in the future; and the encryption technology may be subject to export and import laws. NO SECURITY SYSTEM IS PERFECT, AND WE DO NOT GUARANTEE THAT THE ENCRYPTION CANNOT BE BROKEN OR BYPASSED.
THE LICENSED APPLICATION ERASES CONTENT BY DESIGN. ERASED CONTENT CANNOT BE RECOVERED BY YOU OR BY US.
You acknowledge and agree that:
11.1. With a Pro Purchase you may set a Duress PIN. Entering it on the lock screen or at any other PIN prompt in the Licensed Application makes the Licensed Application give the same unlock feedback as your real PIN, then open the welcome screen of a new installation while it silently erases theSHFT's data on the Authorized Device and, when the device can reach our servers, deletes your account on our servers. There is no decoy view. If the device cannot reach our servers, the account is not deleted and can later be restored with the Recovery Phrase, and notifications and incoming calls for it can still reach the device until it is deleted. The Duress PIN leaves the device's own records in place and cannot reach other people's copies or older backups, it keeps working after a subscription ends, it also works during a lockout after wrong PIN entries, and restoring your account removes it.
11.2. Never choose a Duress PIN (a Pro feature) that begins with the same digits as your unlock PIN, or an unlock PIN that begins with the same digits as your Duress PIN.
11.3. You must not use the Duress PIN (a Pro feature), or any other erase feature, to destroy information you have a legal duty to preserve or to obstruct any lawful investigation, search or proceeding.
12.1. The App includes Communities where members may post and share Content, and where posts may be upvoted or downvoted by any signed in user of the App, whether or not that user has joined the Community. Replying, voting on replies, voting in polls, reacting and posting remain limited to members. You acknowledge and agree to the following regarding Community Content:
12.2. Stories are visible to your contacts, expire after twenty four (24) hours, are encrypted at rest with a key our servers hold, and are NOT end-to-end encrypted. Recipients may capture Story content before it expires.
12.3. You grant theSHFT the licenses to your content described in Section 20 of the Terms of Service.
You are solely responsible for all User Data you create, send, post or share, and for your conduct. You must follow the rules of conduct in Section 10 of the Terms of Service and the Community Guidelines. theSHFT may, but has no obligation to, monitor, review or remove content and may act against accounts as the Terms of Service describe.
MONTHLY AND YEARLY theSHFT PRO SUBSCRIPTIONS RENEW AUTOMATICALLY AT THE END OF EACH PERIOD AT THE THEN CURRENT PRICE, AND YOUR APPLE ACCOUNT IS CHARGED WITHIN TWENTY FOUR (24) HOURS BEFORE THE END OF THE CURRENT PERIOD, UNTIL YOU CANCEL. TO AVOID THE NEXT CHARGE, CANCEL AT LEAST TWENTY FOUR (24) HOURS BEFORE THE END OF THE CURRENT PERIOD.
14.1. The price of each plan is the price the App Store shows you before you confirm. You can cancel at any time in Settings, then your name, then Subscriptions, or at https://apps.apple.com/account/subscriptions. Cancellation takes effect at the end of the current period, and you keep Pro until then. Deleting the Licensed Application or your account does not cancel a subscription.
14.2. A free trial or introductory offer, if the App Store shows you one, converts to a paid subscription at the regular price unless you cancel at least twenty four (24) hours before it ends.
14.3. Apple processes all payments and refunds. Except as required by law or granted by Apple, payments are non-refundable and there are no refunds for partial periods. Request a refund from Apple at https://reportaproblem.apple.com. We cannot issue App Store refunds.
14.4. A Pro Purchase applies to your own account only. Video calls require Pro on both sides, and a participant without Pro remains subject to the free call length limit.
14.5. LIFETIME ACCESS (no longer offered; purchases made before June 2026 stay valid): A single charge to your Apple Account. Nothing renews. Lifetime access unlocks Pro features on the account that bought it, as our subscription provider records the purchase, for as long as the App is offered; it does not obligate theSHFT to keep offering the App or any particular feature.
14.6. Section 17 of the Terms of Service sets out the full terms for theSHFT Pro, promotion codes, referral codes and price changes, and controls if there is a conflict.
Our Privacy Policy describes what information the Licensed Application and our services collect, how we use and share it, how long we keep it and your rights. The Licensed Application uses Sentry for crash and stability reports, which is on by default and can be turned off in Settings, Privacy, Advanced privacy, "Send crash reports." theSHFT has no analytics, and the Licensed Application uses no advertising or analytics software. You consent to the transfer of your information to the United States as the Privacy Policy describes.
16.1. The Licensed Application relies on third-party services, including Apple (distribution, payments, push notifications and device services), Google (Firebase and Google Cloud hosting and our message relay), our call provider, Expo (push delivery), RevenueCat (subscription records) and Sentry (crash reports). We are not responsible for third-party services and do not guarantee their availability.
16.2. You must comply with applicable third-party terms of agreement when using the Licensed Application, for example your wireless data service agreement and the Platform Provider's terms.
17.1. This EULA is effective until terminated. Your rights under it end automatically if you breach it. We may suspend or terminate your license as Section 26 of the Terms of Service describes. You may end it at any time by deleting your account and the Licensed Application.
17.2. When this EULA ends, you must stop using the Licensed Application and delete it. Sections 5, 6, 8 to 14 and 18 to 32 survive.
This Section repeats Section 27 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
PLEASE READ THIS SECTION CAREFULLY. IT LIMITS OUR RESPONSIBILITY TO YOU.
Terms 27.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND THE SERVICES, INCLUDING ALL FEATURES, CONTENT, ENCRYPTION, ERASE FEATURES, SAFETY TOOLS AND UPDATES, ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
Terms 27.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, theSHFT LLC AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS AND SERVICE PROVIDERS (TOGETHER, THE "theSHFT PARTIES") DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Terms 27.3. WITHOUT LIMITING THE ABOVE, THE theSHFT PARTIES DO NOT WARRANT THAT:
Terms 27.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM US OR THROUGH THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. THE FACTUAL DESCRIPTIONS IN THESE TERMS AND IN THE PRIVACY POLICY OF HOW THE SERVICES WORK ARE PROVIDED SO THAT YOU CAN DECIDE WHETHER TO USE THEM; THEY ARE ACCURATE TO THE BEST OF OUR KNOWLEDGE ON THE LAST UPDATED DATE AND WE WILL UPDATE THEM WHEN THE SERVICES CHANGE, BUT THEY ARE NOT A GUARANTEE THAT THE SERVICES WILL PERFORM WITHOUT FAILURE.
Terms 27.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. IN THOSE JURISDICTIONS THE EXCLUSIONS ABOVE APPLY ONLY TO THE EXTENT THE LAW ALLOWS, AND ANY IMPLIED WARRANTY THAT CANNOT BE EXCLUDED IS LIMITED TO THE SHORTEST PERIOD THE LAW ALLOWS. Section 35 lists additional notices for residents of certain states.
theSHFT IS NOT A TELECOMMUNICATIONS PROVIDER AND THE LICENSED APPLICATION IS NOT A REPLACEMENT FOR TELEPHONE SERVICE. IT CANNOT BE USED TO CONTACT 911, 112, 999 OR ANY OTHER EMERGENCY SERVICE, AND IT MAY NOT WORK DURING NETWORK OUTAGES, POWER FAILURES OR EMERGENCIES. DO NOT RELY ON IT FOR TIME CRITICAL OR LIFE THREATENING COMMUNICATIONS.
This Section repeats Section 28 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
Terms 28.1. You understand and accept that using any communication service involves risk, and that the features that make theSHFT private also create risks of their own. In particular you accept the risks that: (a) content you or others send may be erased on purpose by a timer, by the other person or by an erase feature, and cannot be recovered; (b) a person you communicate with may copy, photograph, record, forward or disclose what you send; (c) your device, your keyboard, other apps or your network may be compromised in ways no encryption can prevent; (d) metadata about your communications may reveal information even when the content is encrypted; (e) other users may lie about who they are; and (f) laws about encryption, recording, privacy and record keeping differ between places and may apply to you.
Terms 28.2. You are responsible for deciding whether theSHFT is appropriate for your purposes and for any precautions you need, such as keeping your own records of anything you must keep, verifying the identity of the people you talk to, keeping your device and its operating system up to date and protected with a passcode, and storing your Recovery Phrase safely.
Terms 28.3. This Section does not relieve us of any liability that the law does not allow us to exclude, including liability for our gross negligence, willful misconduct or fraud.
This Section repeats Section 29 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
PLEASE READ THIS SECTION CAREFULLY. IT LIMITS THE AMOUNT YOU CAN RECOVER FROM US.
Terms 29.1. EXCLUSION OF CERTAIN DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE theSHFT PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR CONTENT, LOSS OF PRIVACY, COST OF SUBSTITUTE SERVICES, OR DAMAGES FOR EMOTIONAL DISTRESS, ARISING OUT OF OR RELATING TO THESE TERMS, THE APPLICATION OR THE SERVICES, INCLUDING DAMAGES CAUSED BY: (A) THE ERASURE OF ANY CONTENT BY A TIMER, BY ANOTHER USER, BY A DURESS PIN (A theSHFT PRO FEATURE), A PANIC WIPE, A SIGN OUT, AN ACCOUNT DELETION OR ANY OTHER ERASE FEATURE; (B) A LOST OR FORGOTTEN PIN OR RECOVERY PHRASE; (C) THE CONDUCT OR CONTENT OF ANY OTHER USER OR THIRD PARTY; (D) ANY UNAUTHORIZED ACCESS TO YOUR DEVICE, ACCOUNT OR CONTENT THAT WE DID NOT CAUSE; (E) ANY INTERRUPTION, DELAY OR FAILURE OF THE SERVICES OR OF ANY THIRD-PARTY SERVICE; OR (F) ANY ACTION WE TAKE IN GOOD FAITH TO COMPLY WITH THE LAW OR TO PROTECT THE SAFETY OF ANY PERSON, IN EACH CASE WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR ANY OTHER THEORY, AND EVEN IF WE HAVE BEEN TOLD SUCH DAMAGES WERE POSSIBLE.
Terms 29.2. CAP ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF ALL THE theSHFT PARTIES TOGETHER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE APPLICATION OR THE SERVICES WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT YOU PAID FOR theSHFT PRO IN THE TWELVE (12) MONTHS BEFORE THE EVENT THAT GAVE RISE TO THE CLAIM; AND (B) ONE HUNDRED U.S. DOLLARS (100 USD).
Terms 29.3. WHAT THIS SECTION DOES NOT LIMIT. NOTHING IN THESE TERMS EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING, WHERE THE LAW SO PROVIDES, LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR A VIOLATION OF LAW THAT THE LAW DOES NOT ALLOW US TO LIMIT (INCLUDING UNDER A PRIVACY OR DATA SECURITY STATUTE), OR FOR ANY RIGHT A CONSUMER HAS UNDER A STATUTE THAT CANNOT BE WAIVED BY CONTRACT.
Terms 29.4. BASIS OF THE BARGAIN. The Free tier of theSHFT is provided without charge and theSHFT Pro is priced on the basis of this allocation of risk. You agree that the disclaimers in Section 27 and the limits in this Section are a reasonable allocation of risk between you and us and are an essential part of the agreement, and that they apply even if a limited remedy fails of its essential purpose.
Terms 29.5. JURISDICTIONAL LIMITS. Some jurisdictions do not allow the exclusion or limitation of certain damages. In those jurisdictions the exclusions and limits above apply to the fullest extent that law allows and no further.
This Section repeats Section 30 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
Terms 30.1. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless the theSHFT Parties from and against any third-party claim, demand, action, investigation or proceeding, and the resulting losses, damages, fines, penalties, judgments, settlements, costs and reasonable attorneys' fees, to the extent it arises out of: (a) content you create, send, post or share through the Services; (b) your violation of these Terms, the Community Guidelines or any law; (c) your violation of the rights of any other person, including intellectual property, privacy and publicity rights; or (d) the use of your account by another person with your permission or because of your failure to protect your PIN, device or Recovery Phrase.
Terms 30.2. You do not have to indemnify us for claims to the extent they arise from our own negligence, willful misconduct, fraud or breach of these Terms.
Terms 30.3. We will tell you promptly about any claim for which we seek indemnity, as far as we are able to reach you. We may choose to control the defense of the claim at our own expense, and you agree to cooperate reasonably. You may not settle a claim that imposes any obligation or admission on us without our written consent.
Terms 30.4. This Section does not apply to consumers in any jurisdiction where such an indemnity is not permitted, and it applies only to the extent the law allows.
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS EULA OR THE LICENSED APPLICATION IS SUBJECT TO THE AGREEMENT TO ARBITRATE BELOW, WHICH IS SECTION 31 OF THE TERMS OF SERVICE. THERE IS ONE AGREEMENT TO ARBITRATE BETWEEN YOU AND US; THIS EULA DOES NOT CREATE A SEPARATE OR DIFFERENT ONE, AND AN OPT OUT UNDER SECTION 31.11 APPLIES TO BOTH THE TERMS OF SERVICE AND THIS EULA.
This Section repeats Section 31 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES YOU AND US TO RESOLVE MOST DISPUTES BY BINDING INDIVIDUAL ARBITRATION INSTEAD OF IN COURT, WAIVES THE RIGHT TO A JURY TRIAL, AND WAIVES THE RIGHT TO BRING OR TAKE PART IN A CLASS ACTION. YOU CAN OPT OUT WITHIN THIRTY (30) DAYS, AS SECTION 31.11 EXPLAINS.
Before either of us starts an arbitration or a small claims case, the party with the claim must send the other a written notice of the dispute and try in good faith to resolve it informally for sixty (60) days. A notice to us goes to support@theshft.app with the subject line "Notice of Dispute" and, if you want, by mail to theSHFT LLC, Attn: Legal, 212 W. Troy St., Ste B, Dothan, AL 36303, United States. Your notice must include your username, how we can reach you (an email address you choose to give us, or your username in the Application), a description of the dispute and the relief you want, and must be signed by you personally (a typed name is enough), not only by a lawyer. Because we do not have your email address or phone number unless you give them to us, a notice from us to you will be sent through the Application and, if you have given us an email address in connection with the dispute, to that address. If you ask, we will hold a call or video meeting with you (and your lawyer, if you have one) during the sixty (60) days. All statute of limitations periods and filing fee deadlines are paused (tolled) while the informal process is under way. A court may enforce this Section 31.1, and an arbitration provider may refuse or defer a demand filed without compliance with it.
You and theSHFT LLC agree that any dispute, claim or controversy between you and us that arises out of or relates in any way to these Terms, the Application, the Services, your account, any purchase, any communication from us or our relationship with you, whether based on contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, negligence and product liability), or any other legal or equitable theory, and whether it arose before or after you agreed to these Terms (each, a "Dispute"), will be resolved by final and binding arbitration on an individual basis, except as Section 31.4 provides. The Federal Arbitration Act, 9 U.S.C. 1 and following, governs the interpretation and enforcement of this Section 31, which is a transaction involving interstate commerce.
The arbitrator decides all issues about the Dispute and about this Section 31, including its scope, interpretation, applicability, enforceability, revocability and validity, except that a court of competent jurisdiction decides: (a) whether the class action waiver in Section 31.10 is valid or enforceable; (b) whether a claim qualifies for small claims court or for one of the other exceptions in Section 31.4; (c) disputes about compliance with Sections 31.1 and 31.8; and (d) whether a party has opted out under Section 31.11.
The following do not have to be arbitrated: (a) an individual claim that qualifies for and stays in small claims court, in the small claims court of the county where you live or, if you choose, in Houston County, Alabama; (b) a claim by either party to protect or enforce its copyrights, trademarks, trade secrets or patents; (c) a request for a public injunction, meaning injunctive relief whose primary purpose and effect is to prevent unlawful acts that threaten future injury to the general public, where applicable law does not allow that request to be waived or arbitrated, which will be heard by a court after the arbitration of all other claims and remedies (the court proceeding is stayed until then); and (d) a matter that a government agency brings on its own behalf, and any complaint you make to a government agency.
The arbitration will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules and, where Section 31.8 applies, its Mass Arbitration Supplementary Rules, each as in effect when the arbitration is filed and as modified by this Section 31 (the "AAA Rules"). The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is not available or refuses to administer the arbitration, the parties will agree on another established arbitration provider, or a court will appoint one. A party starts an arbitration by filing a demand with the AAA and sending a copy to the other party at the address in Section 31.1.
The arbitration will be heard by one neutral arbitrator. The arbitrator has the same power to award individual relief as a court would have and must follow these Terms and applicable law, including applicable statutes of limitations. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking it and only as needed to provide relief on that party's individual claim. Unless you and we agree otherwise, any in person hearing will take place in the county where you live, or at another place we agree on; the arbitration may instead be decided on documents alone or by telephone or video conference, and for claims of ten thousand U.S. dollars (10,000 USD) or less you may choose which of those forms is used. The arbitrator will issue a written decision that states the essential findings and conclusions. Judgment on the award may be entered in any court of competent jurisdiction. An award has no effect on any other case or claim, except that an award between you and us may be relied on in a later dispute between you and us.
Payment of all filing, administration and arbitrator fees is governed by the AAA Rules, which limit the fees a consumer pays. We will pay any filing, administration and arbitrator fees above the amount the AAA Rules require you to pay. If the arbitrator finds that your claim or the relief you sought was frivolous or brought for an improper purpose under the standard in Federal Rule of Civil Procedure 11(b), the payment of fees will instead be governed by the AAA Rules and the arbitrator may reallocate them. Each party bears its own attorneys' fees and costs unless the claim is brought under a law that gives the prevailing party a right to recover them, in which case the arbitrator may award them as that law provides. We will not seek our attorneys' fees from you in an arbitration unless the arbitrator finds your claim frivolous under the standard above.
If twenty five (25) or more demands for arbitration that raise similar claims are filed against us or by us by the same or coordinated counsel or organizations, or are otherwise coordinated, within one hundred eighty (180) days (each, a "Mass Filing"), the following applies in addition to the AAA Rules, including the AAA Mass Arbitration Supplementary Rules: (a) Staged proceedings. The parties' counsel will select, in good faith, up to ten (10) demands each to proceed first (up to twenty (20) in all) as a first stage, with one arbitrator for each demand unless the parties agree otherwise; the remaining demands are not filed or are held by the AAA, and no fees are due on them, until the first stage is complete. (b) Mediation. After the first stage, the parties will mediate all remaining demands in good faith for at least sixty (60) days with a mediator we pay for. (c) Later stages. If the remaining demands are not resolved, they will proceed in stages of up to one hundred (100) demands at a time, or a larger number if the parties agree, with the order chosen at random unless the parties agree otherwise, and fees will be charged only as each stage is filed. Each later stage will be filed within thirty (30) days after the previous stage is filed, not decided. If a demand has not been filed within three hundred sixty five (365) days after it was first submitted, the claimant may bring that claim in court. (d) No binding effect. The result of one arbitration does not bind any other claimant, and nothing in this Section 31.8 limits any claimant's right to individual discovery and an individual hearing under the AAA Rules. (e) Tolling. The statute of limitations for each demand held under this Section 31.8 is paused from the date the demand was first submitted until it is called for filing. (f) Opting out of stages. If a court decides that this Section 31.8 is unenforceable as to any demand, that demand will proceed under the AAA Rules alone, and this Section 31.8 still applies to the others. A court of competent jurisdiction may enforce this Section 31.8, including by an order requiring the parties to follow it.
Neither party may shift to the other its attorneys' fees, costs or arbitration fees except as Section 31.7 provides or a statute allows.
YOU AND WE EACH AGREE THAT A DISPUTE WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING, IN ARBITRATION OR IN COURT. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR PRESIDE OVER ANY CLASS OR REPRESENTATIVE PROCEEDING, EXCEPT AS SECTION 31.8 PROVIDES FOR ADMINISTRATION ONLY. TO THE EXTENT THE LAW ALLOWS, YOU AND WE EACH WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE, WHETHER IN ARBITRATION OR IN COURT, INCLUDING ANY CLAIM THAT PROCEEDS IN COURT UNDER THIS SECTION 31.
If a court decides that the class action waiver in this Section 31.10 cannot be enforced as to a particular claim or request for relief, then that claim or request (and only that one) will be severed and heard in court, after the arbitration of every other claim and request, and the court proceeding will be stayed until the arbitration is complete. The rest of this Section 31 still applies. If applicable law does not allow a waiver of representative claims under a statute (for example the California Private Attorneys General Act, to the extent it could apply), those claims will be stayed in court until your individual claims are arbitrated.
YOU MAY OPT OUT OF THIS AGREEMENT TO ARBITRATE AND THE CLASS ACTION WAIVER BY SENDING US A WRITTEN NOTICE WITHIN THIRTY (30) DAYS AFTER YOU FIRST AGREE TO THESE TERMS (OR TO A VERSION OF THESE TERMS THAT FIRST CONTAINED AN AGREEMENT TO ARBITRATE).
Send the notice to support@theshft.app with the subject line "Arbitration Opt Out", or by mail to the address in Section 31.1. The notice must include your username and a clear statement that you want to opt out of the agreement to arbitrate. You do not have to give your legal name or address to opt out; if we need to confirm that the request comes from the account holder, we will ask you to confirm it from inside the Application. Opting out does not affect any other part of these Terms, and it does not affect any agreement to arbitrate you have with us under an earlier opt out decision or a separate agreement. If you opt out, Section 32 decides where disputes are heard.
If we make a material change to this Section 31, the change will not apply to any Dispute that one of us has already notified the other about under Section 31.1 or that is already pending in arbitration or court, and you may reject the change by sending a notice under Section 31.11 within thirty (30) days after you accept the version of these Terms that contains the change; if you do, the version of this Section 31 you last agreed to continues to apply to you. If you opted out of an earlier version, you do not need to opt out again.
Except as Sections 31.8 and 31.10 provide, if any part of this Section 31 is found unenforceable, that part will be severed and the rest will remain in force. If the whole of this Section 31 is found unenforceable, or if you opted out, any Dispute will be heard in court under Section 32, and the jury trial waiver in Section 31.10 will still apply to the extent the law allows. This Section 31 survives the end of these Terms, the deletion of your account and the end of any subscription.
This Section repeats Section 32 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
Terms 32.1. Governing Law. These Terms and any Dispute are governed by the laws of the State of Alabama, United States, without regard to its conflict of laws rules, except that the Federal Arbitration Act governs Section 31. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If you live outside the United States, or in a state whose consumer protection laws cannot be displaced by a choice of law, this choice of law does not deprive you of the protection of the mandatory provisions of the law of the place where you live.
Terms 32.2. Courts. Any Dispute that is not arbitrated (because an exception in Section 31.4 applies, because you opted out, or because Section 31 is found not to apply) will be heard only in the state courts located in Houston County, Alabama, or the United States District Court for the Middle District of Alabama, and you and we consent to the personal jurisdiction of those courts, except that: (a) you may bring an individual claim in the small claims court of the county where you live; (b) if you are a consumer and applicable law gives you the right to sue in the courts of the place where you live, you keep that right; and (c) either party may seek emergency injunctive relief to protect its intellectual property or the security of the Services in any court of competent jurisdiction.
This Section repeats Section 33 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
A claim must be brought within the time the applicable statute of limitations allows. These Terms do not shorten any limitation period, and the informal resolution period in Section 31.1 and any period in which a demand is held under Section 31.8 pause it as those Sections describe.
This Section repeats Section 35 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
Terms 35.1. California. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us about the Services at support@theshft.app. California residents may cancel a theSHFT Pro subscription online at any time through their Apple account, as Section 17.3 explains.
Terms 35.2. Automatic Renewal Laws. If you live in a state with an automatic renewal or continuous service law, the disclosures in Section 17 are made for the purposes of that law, and if that law gives you a right that Section 17 does not describe (for example a particular way to cancel or a notice before a price change or renewal), you have that right.
Terms 35.3. New Jersey. If you are a New Jersey resident, the following do not apply to you to the extent New Jersey law does not permit them: the limitation or exclusion of damages in Section 29 for losses caused by our negligence, gross negligence or willful misconduct; the exclusion of punitive damages; and the indemnity in Section 30 to the extent it would cover our own negligence. Nothing in these Terms limits any right you have under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act.
Terms 35.4. Other States. Some states do not allow the exclusion of implied warranties, the limitation of incidental or consequential damages, or other limits in these Terms. If you live in such a state, those limits apply to you only as far as your state's law allows, and you may have other rights that vary from state to state.
This Section repeats Section 37 of the Terms of Service word for word, so that it is part of this EULA as well. It is one provision, not two: the paragraphs below keep their Terms of Service numbers (marked "Terms"), section references in them are to the Terms of Service, and if the two texts ever differ, the Terms of Service control.
Terms 37.1. The Application contains encryption. It is subject to U.S. export control laws, including the Export Administration Regulations (15 C.F.R. Parts 730 to 774), and to U.S. economic sanctions administered by the Office of Foreign Assets Control, and it may be subject to the import and use laws of other countries. Our position is that the Application is a mass market encryption item under the Export Administration Regulations; the Application is not a defense article.
Terms 37.2. You represent and warrant that: (a) you are not located in, ordinarily resident in, or organized under the laws of, any country or region subject to comprehensive U.S. sanctions or embargo (as of the Last Updated date these include Cuba, Iran, North Korea and the Crimea, so-called Donetsk People's Republic and so-called Luhansk People's Republic regions of Ukraine, and they may change); (b) you are not a person listed on, or owned or controlled by a person listed on, any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals and Blocked Persons List, the Entity List and the Denied Persons List; and (c) you will not use, export, re-export or transfer the Application in violation of these laws, or for any purpose they prohibit, including the development, design, manufacture or production of nuclear, chemical or biological weapons or missiles.
Terms 37.3. You agree to tell us promptly if any of these representations stops being true, and we may suspend or end your access if we believe your use would violate these laws.
The Licensed Application is "commercial computer software" and its documentation is "commercial computer software documentation," and any U.S. Government end user acquires them only with the rights in this EULA, as provided in 48 C.F.R. 12.212 and 227.7202.
If you obtained the Licensed Application from the Apple App Store, the following terms apply and control over any conflicting term with respect to Apple:
We may change this EULA as Section 39 of the Terms of Service describes. If a change is material, we will tell you in the Licensed Application and ask you to accept the new version before it applies to you. A change does not apply to a dispute that arose before it took effect.
31.1. Severability. If any provision of this EULA is found unenforceable, it will be enforced to the maximum extent permitted and the rest will remain in force, subject to Section 31 of the Terms of Service for the agreement to arbitrate.
31.2. No Waiver. Our failure to enforce a provision is not a waiver.
31.3. Assignment. You may not assign this EULA. We may assign it to a successor as Section 41.4 of the Terms of Service describes.
31.4. Entire Agreement. This EULA, together with the documents listed in Section 1.1, is the entire agreement between you and us about the Licensed Application.
31.5. Interpretation. Headings are for convenience only. "Including" means "including without limitation." This EULA will not be construed against us because we drafted it.
31.6. Language. This EULA is written in English, and the English version controls unless the law where you live requires otherwise.
31.7. Electronic Acceptance. Your acceptance in the Licensed Application is an electronic signature with the same effect as a signature on paper.
theSHFT LLC, 212 W. Troy St., Ste B, Dothan, AL 36303, United States
Email: support@theshft.app (general, privacy, legal notices, DMCA notices and security reports)
Website: https://theshft.app
BY TAPPING TO AGREE IN THE LICENSED APPLICATION, OR BY INSTALLING OR USING IT AFTER THIS EULA IS SHOWN TO YOU, YOU CONFIRM THAT YOU HAVE READ AND AGREE TO THIS EULA AND THE TERMS OF SERVICE, INCLUDING THE AGREEMENT TO ARBITRATE AND THE CLASS ACTION AND JURY TRIAL WAIVERS, WHICH YOU MAY OPT OUT OF WITHIN THIRTY (30) DAYS.