OFFPEAKPRO TERMS OF SERVICE

Effective Date: 01/01/2026
Website: https://offpeakpro.com
Company: OffPeakPRO (“OffPeakPRO,” “we,” “us,” or “our”)
Address: 1741 Dakota Ave South, Suite 114, Huron, SD 57350
Phone: (605) 303-6746
Email: [email protected]

These Terms of Service (“Terms”) govern your access to and use of the OffPeakPRO website, platform, SMS and email marketing services, and related materials (collectively, the “Services”). By accessing or using the Services, you (“Customer,” “you,” or “your”) agree to be bound by these Terms.

If you are entering into these Terms on behalf of a business entity (such as a restaurant, med-spa, or salon), you represent that you have the authority to bind that entity, and “you” will refer to that entity.

OffPeakPRO currently serves businesses located in the United States only. If you are not located in the United States or are subject to non-U.S. data or marketing regulations, you may not use the Services under these Terms.

1. SERVICES PROVIDED

1.1 Overview.
OffPeakPRO provides a done-for-you direct marketing system designed to help restaurants, med-spas, and salons fill off-peak hours and increase revenue by driving repeat visits. The Services may include, without limitation:

SMS and email marketing campaign creation and delivery;

Time-based promotional offers designed to drive traffic during off-peak hours;

A dedicated local phone number and/or email address for outbound marketing;

QR opt-in kits, promo placards, and other in-location marketing materials;

POS coupon code tracking structure and reporting guidance;

Staff training and onboarding support; and

Ongoing campaign management and optimization.

1.2 Nature of the Service (Marketing Tool Only).
OffPeakPRO is a marketing tool and service, not a point-of-sale system, financial advisor, or business operations consultant. We provide messaging campaigns and promotional structures that are intended to increase repeat visits and off-peak utilization, but:

We do not sell your products or services to your customers;

We do not control your prices, staff performance, customer experience, or business operations; and

We do not guarantee overall profitability, revenue, or business success.

Our performance claims are based on typical and historical data across similar businesses and are not promises regarding your specific financial outcomes.

2. CUSTOMER RESPONSIBILITIES

2.1 Enrollment and Opt-Ins.
You and your staff are solely responsible for:

Encouraging patrons to enroll in your VIP program and opt in to receive SMS and/or email marketing;

Displaying QR codes, promo placards, and any other opt-in materials provided by OffPeakPRO; and

Ensuring that any offline collection of consent (e.g., paper forms) is accurate and compliant.

2.2 Consent and Compliance.
You are solely responsible for ensuring that all contacts added to your OffPeakPRO account have provided valid, explicit consent to receive marketing communications in accordance with applicable U.S. laws and regulations, which may include, without limitation:

The Telephone Consumer Protection Act (TCPA);

CAN-SPAM Act;

State-level consumer protection and marketing laws; and

Any applicable carrier or industry guidelines.

You may not upload or message any contact who has not provided the required consent.

2.3 POS Tracking and Reporting.
You are solely responsible for:

Implementing coupon codes in your POS system;

Training staff to correctly use and redeem promotional codes;

Running quarterly (or other requested) reports on coupon redemptions; and

Providing OffPeakPRO with accurate redemption data to evaluate campaign performance.

If you fail to implement coupon codes, correctly track redemptions, or provide accurate data, OffPeakPRO may be unable to assess program performance or determine eligibility for any guarantee described in Section 3.5.

2.4 Use of the Services.
You agree to:

Use the Services only for lawful purposes and in accordance with these Terms;

Not use the Services to send fraudulent, misleading, obscene, harassing, or otherwise unlawful content;

Ensure that your offers and promotions comply with applicable laws (e.g., alcohol, age-restricted, health-related, or state-specific discounting rules); and

Maintain accurate account information, including contact details and billing information.

2.5 Staff Training and Internal Processes.
OffPeakPRO may provide initial training and resources, but you are responsible for:

Ensuring your staff attend training as reasonably required;

Implementing internal processes to support the program (e.g., asking guests to join, using prescribed opt-in language); and

Ongoing staff compliance with the program and any applicable regulations.

3. PROGRAM STRUCTURE, FEES, AND GUARANTEE

3.1 Quarterly Commitment.
The OffPeakPRO program is contracted in quarterly (3-month) commitment periods. By enrolling, you agree to maintain your subscription for at least one full quarter, subject to the termination provisions in Section 11.

3.2 Billing and Fees.

Subscription Fees. Subscription fees are based on the number of contacts captured and marketed to each week, as described in the current pricing schedule on our website (e.g., tiers such as up to 999 contacts, 999–1999, 2000–4999, 4999+).

Billing Frequency. Fees are billed monthly in advance, even though the commitment term is quarterly.

Setup Fee. We may charge a one-time setup fee to cover hard costs, including but not limited to promo placards, QR kits, dedicated phone/email setup, integration support, and initial campaign configuration.

Taxes. Fees do not include applicable taxes, which may be added to your invoice and are your responsibility to pay.

3.3 Promotions and Campaign Cadence.

Promotions are typically planned and set up in 12-week (quarterly) blocks.

The standard program includes up to three (3) marketing messages per week (via SMS, email, or a combination) sent to contacts who have opted in.

OffPeakPRO will schedule messages primarily during your slow or off-peak hours, based on information you provide.

OffPeakPRO may adjust timing, frequency, and content of campaigns in order to comply with applicable laws, industry rules, or carrier requirements, or to improve performance.

3.4 Dedicated Phone Number / Email.

The program includes a dedicated local phone number and/or email address used for marketing communications.

These numbers/addresses are and remain the property of OffPeakPRO and/or its vendors and are not transferable upon termination, unless explicitly agreed in a separate written agreement.

3.5 10% Increase Money-Back Guarantee.

OffPeakPRO’s program is designed to drive at least a 10% increase in returning customers during the first full quarter of active use for your off-peak promotions. The following terms apply to this guarantee:

Scope of Guarantee.

The guarantee applies specifically to a 10% increase in return customers (or off-peak traffic attributable to the program), measured during your first full active quarter using OffPeakPRO.

The guarantee is not a guarantee of overall revenue, total profit, or business success.

Eligibility Conditions. You must:

Complete the full initial quarterly commitment without early cancellation;

Implement OffPeakPRO’s recommended setup, including QR codes, promo placards, and opt-in processes;

Ensure staff are reasonably trained and consistently invite patrons to join the VIP program;

Use the system as intended (up to three weekly messages for the full quarter, unless prohibited by law);

Correctly track and report coupon redemptions from your POS, providing OffPeakPRO with requested reports and access to the data necessary to evaluate performance; and

Not materially alter or disable required components of the program (e.g., not turning off messaging for extended periods, not removing opt-in materials).

Measuring the 10% Increase.

The increase is measured using mutually agreed upon metrics, typically based on coupon redemptions and/or repeat customer visit data from your POS, compared to a baseline defined prior to your first full quarter.

If reliable data is not available, cannot be produced, or is incomplete due to your actions or inaction, the guarantee may not apply.

Money-Back Remedy.

If, after the first full qualifying quarter, OffPeakPRO determines that the 10% increase has not been achieved and all eligibility conditions have been met, OffPeakPRO will refund the subscription fees you paid for that first quarter (excluding any hard-cost setup fees and taxes).

This refund is your sole and exclusive remedy under the guarantee.

Exceptions.
OffPeakPRO will not be responsible for failing to achieve the 10% increase where performance is materially impacted by factors beyond our control, including but not limited to:

Significant economic downturns or market shocks;

Government restrictions that materially impact your business operations (e.g., closures, capacity limits);

Major changes in your business model, pricing, or hours that materially impact customer behavior;

Substantial drops in customer service quality, product quality, or other operational issues;

Periods of extended closure, renovations, or staffing shortages that prevent normal operation.

4. COMPLIANCE, OPT-IN, AND OPT-OUT

4.1 Opt-In Requirements.
You must only add or permit OffPeakPRO to message individuals who have given proper consent. This may include:

Scanning a QR code and submitting an online form that clearly informs them they are signing up for marketing messages; and

Agreeing to receive automated or recurring SMS and/or email messages from your business.

4.2 Opt-Out Mechanisms.

All SMS messages must include a clear mechanism for recipients to opt out (e.g., “Reply STOP to unsubscribe”).

All email messages must include an unsubscribe link or other method compliant with applicable law.

OffPeakPRO will implement standard opt-out functionality through its platform; however, you are responsible for promptly honoring opt-out requests that are made directly to your staff or business outside the platform.

4.3 Jurisdictional Restrictions (SMS vs. Email).

Where SMS marketing is prohibited, restricted, or impractical due to federal or state law, carrier policies, or other U.S. regulatory frameworks, OffPeakPRO may:

Deliver promotions by email only;

Adjust message frequency or timing; or

Modify the messaging strategy as necessary to comply.

You agree that OffPeakPRO may modify delivery channels to remain compliant with applicable U.S. law and industry rules.

4.4 Regulatory Changes.

SMS, email, and marketing regulations can change. OffPeakPRO may update practices, message frequency, or content to comply with new regulations, rules, or carrier requirements. Such changes may occur with or without prior notice, and OffPeakPRO will not be liable for any impact on campaign performance resulting from actions taken in good faith to maintain compliance.

5. CUSTOMER CONTENT AND LICENSE

5.1 Customer Content.
You may provide content, including but not limited to logos, business names, images, menu items, special offers, coupon details, pricing, and other materials (“Customer Content”). You retain all rights in your Customer Content.

5.2 License to OffPeakPRO.
You grant OffPeakPRO a non-exclusive, worldwide, royalty-free license to use, reproduce, modify, adapt, publish, distribute, and display your Customer Content solely for the purposes of:

Providing, maintaining, and improving the Services;

Creating and running your campaigns; and

Promoting your business as a customer success example, with your prior consent where required.

5.3 Responsibility for Customer Content.
You represent and warrant that:

You own or have the necessary rights and permissions to provide the Customer Content;

The Customer Content does not infringe any third-party rights, including copyright, trademark, privacy, or publicity rights; and

The Customer Content complies with all applicable laws and regulations.

6. OFFPEAKPRO CONTENT AND INTELLECTUAL PROPERTY

6.1 Ownership.
OffPeakPRO and its licensors own all rights, title, and interest in and to:

The Services, including all software, technology, tools, interfaces, templates, and materials;

All campaign frameworks, strategies, and creative concepts developed by OffPeakPRO; and

All documentation, training materials, and marketing collateral provided by OffPeakPRO (excluding Customer Content).

6.2 License to You.
Subject to your compliance with these Terms and payment of all applicable fees, OffPeakPRO grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your internal business purposes during your subscription term.

6.3 Restrictions.
You may not:

Reverse engineer, decompile, or disassemble any part of the Services;

Resell, sublicense, or otherwise provide the Services to any third party;

Use the Services to create a competing product or service; or

Remove, alter, or obscure any proprietary notices or branding on the Services or related materials.

7. PAYMENT TERMS

7.1 Invoicing and Payment.

Subscription fees are billed monthly in advance to the payment method on file.

Setup fees and any agreed-upon one-time fees may be billed upon signing or activation.

You authorize OffPeakPRO (or its payment processor) to charge your payment method for all amounts due.

7.2 Late Payments.
If any payment is not received on time:

OffPeakPRO may charge a late fee or interest as permitted by law; and

OffPeakPRO may suspend or restrict your access to the Services until payment is made.

7.3 Non-Refundable.

Except where prohibited by law or expressly stated in a separate written agreement, all fees paid to OffPeakPRO are non-refundable, including in the event of early termination by you during a quarterly commitment period. Notwithstanding the general non-refundability of fees, the money-back guarantee described in Section 3.5 applies where all conditions are satisfied.

8. SERVICE MODIFICATIONS AND AVAILABILITY

8.1 Modifications.
OffPeakPRO may modify the Services, including features, campaign strategies, user interfaces, and integrations, at any time to improve performance, enhance security, or comply with legal or regulatory changes.

8.2 Availability.
OffPeakPRO will make commercially reasonable efforts to keep the Services available, but does not guarantee uninterrupted or error-free operation. Temporary interruptions may occur due to maintenance, upgrades, or failures of third-party providers (such as carriers, email providers, or internet services).

9. PRIVACY AND DATA PROTECTION

9.1 Privacy Policy.
Your use of the Services is also governed by our Privacy Policy, which explains how we collect, use, and protect data. By using the Services, you agree to the terms of our Privacy Policy.

9.2 Customer Data.
To deliver the Services, OffPeakPRO may process certain data about your customers (e.g., phone numbers, email addresses, and interaction data). You acknowledge that you are the data controller (or equivalent) with respect to your customer data and that OffPeakPRO is a service provider/processor acting on your behalf.

9.3 Compliance.
You are responsible for ensuring that your use of the Services and your instructions to OffPeakPRO comply with all applicable privacy and data protection laws. OffPeakPRO will implement commercially reasonable technical and organizational measures to protect customer data from unauthorized access, use, or disclosure.

10. DISCLAIMERS AND LIMITATION OF LIABILITY

10.1 No Warranty.
The Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by applicable U.S. law, OffPeakPRO disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

10.2 No Guarantee of Overall Business Outcomes.

While OffPeakPRO may provide a 10% return-customer increase money-back guarantee as set forth in Section 3.5, this is limited to the specific metrics and remedy described in that section and does not constitute:

A guarantee of overall revenue;

A guarantee of profit or profitability;

A guarantee of business survival or growth; or

A guarantee against external factors such as changes in competition, economic conditions, or consumer behavior.

You acknowledge that OffPeakPRO is a marketing tool and that all business results depend on many factors outside of OffPeakPRO’s control, including but not limited to your staff performance, service quality, pricing, and customer experience.

10.3 Limitation of Liability.

To the maximum extent permitted by applicable U.S. law:

OffPeakPRO will not be liable for any indirect, incidental, consequential, special, or punitive damages, or any loss of profits, revenue, data, or goodwill, arising out of or related to your use of the Services, even if advised of the possibility of such damages.

OffPeakPRO’s total aggregate liability arising out of or related to these Terms or the Services will not exceed the total amount you paid to OffPeakPRO for the Services during the three (3) months preceding the event giving rise to the claim.

10.4 Exclusions.

Some states do not allow certain limitations of liability or exclusion of implied warranties. In such cases, OffPeakPRO’s liability will be limited to the maximum extent permitted by the law of the state that governs under Section 15.

11. TERM, SUSPENSION, AND TERMINATION

11.1 Initial Term and Renewal.
Your initial term is a quarterly commitment (3 months) starting on the activation date of your subscription. Unless otherwise agreed in writing, your subscription will automatically renew for successive quarterly terms until canceled in accordance with these Terms.

11.2 Customer Termination.
You may cancel your subscription by providing written notice at least [30] days before the end of your current quarterly term. If you cancel mid-term:

You remain responsible for payment of all fees for the full quarterly term; and

No refunds will be issued for unused portions of the Services.

11.3 OffPeakPRO Suspension or Termination.
OffPeakPRO may suspend or terminate your access to the Services, with or without notice, if:

You fail to pay any amounts due;

You violate these Terms or any applicable law;

Your use of the Services poses a security risk or may cause harm to others; or

Required by law, regulation, or carrier/partner policies.

11.4 Effect of Termination.
Upon termination or expiration of your subscription:

Your right to access and use the Services will cease;

OffPeakPRO may deactivate your dedicated phone number and email address used with the Services;

You are responsible for exporting any data you wish to retain before termination, where available; and

Any accrued but unpaid amounts remain due and payable.

12. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless OffPeakPRO and its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to:

Your use of the Services;

Your violation of these Terms or any applicable law or regulation;

Your Customer Content or promotional offers; or

Any actual or alleged infringement, misappropriation, or violation of any third-party rights by you or your staff.

13. THIRD-PARTY SERVICES

The Services may rely on or integrate with third-party services and providers (e.g., SMS carriers, email service providers, POS systems). OffPeakPRO does not control and is not responsible for the availability, performance, or terms of those third-party services. Your use of such services may be governed by separate terms and conditions between you and the third party.

14. CHANGES TO THESE TERMS

OffPeakPRO may update these Terms from time to time. When we do, we will revise the “Effective Date” at the top and, where required by law, provide notice (which may be via email, the Service interface, or website posting). Your continued use of the Services after any such changes constitutes your acceptance of the updated Terms. If you do not agree to the changes, you must stop using the Services.

15. GOVERNING LAW AND DISPUTE RESOLUTION

15.1 Governing Law.
These Terms are governed by and construed in accordance with the laws of the State of South Dakota, without regard to its conflict of law principles.

15.2 Dispute Resolution.
Any dispute, claim, or controversy arising out of or relating to these Terms or the Services that cannot be resolved informally through good-faith negotiations will be resolved by binding arbitration conducted in Sanborn County, South Dakota, administered by the American Arbitration Association under its applicable rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.

15.3 Injunctive Relief.
Notwithstanding the above, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or confidential information.

16. MISCELLANEOUS

16.1 Independent Contractors.
The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship.

16.2 Assignment.
You may not assign or transfer these Terms or your rights or obligations hereunder without OffPeakPRO’s prior written consent. OffPeakPRO may assign these Terms in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

16.3 Entire Agreement.
These Terms, together with any order forms, proposals, or additional policies referenced herein (including the Privacy Policy), constitute the entire agreement between you and OffPeakPRO regarding the Services and supersede all prior or contemporaneous agreements, understandings, and communications.

16.4 Severability.
If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

16.5 Waiver.
Failure by either party to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.

16.6 Notices.
Notices under these Terms may be provided by email, postal mail, or through the Service interface. You are responsible for maintaining up-to-date contact information.

By using OffPeakPRO’s Services, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service.