Shomer, Inc. Warehouse Provider Policy
This Warehousing Services Policy is incorporated by reference into and is subject to the terms in the Shomer, Inc. Terms of Service located at the Terms of Service. Any capitalized terms not defined herein will have the meaning set forth in the Terms of Service. Warehouse Services may refer to any of the services described in this Warehousing Services Policy.
1. “Storage Services” means the types of Warehousing Services set forth in this Section 1.
1.1“Ambient Storage” means a Warehousing Service where Items are stored at room temperature. The Items being stored have no special storage requirements and storing them without significant temperature control is within the guidelines of local laws.
1.2“Cold Storage” means a Warehousing Service where the storage of Items would require either refrigerated space or freezer space. Such temperature requirements are dictated by the nature of the Items’ shelf life, perishability, regulations, and other handling requirements.
1.3“Special Storage” means a Warehousing Service where the handling and storage of Items require special considerations. Items that are considered, hazardous and flammable are examples of special considerations that are dictated by the chemical nature of the Items being stored. The Provider offering special storage services for such Items must be certified and abide by all relevant laws to safely store all such Items.
2.“Inbound Services” means the types of Warehousing Services set forth in this Section 2.
2.1“Pallet Receiving” means a Warehousing Service where Provider personnel unload Items which are already stacked and organized on pallets. Based on the situation, the Provider personnel will either apply labels and put the Items away directly or have to break the pallets down into their cartons, sort the Items appropriately, apply labels, build the pallets back up, shrink-wrap if needed, and then put the Items away into storage.
2.2“Carton Receiving” means a Warehousing Service where Provider personnel unload Items which are floor loaded on a truck and require handling to build pallets in order to put the Items away. Based on the number of SKU's and storage requirements, the Provider personnel will sort the Items accordingly, apply labels, build the pallets, shrink-wrap if needed, and then put away the Items into storage.
3.“Outbound Services” means the types of Warehousing Services set forth in this Section 3.
3.1“Unit Pick” or “Pick” means a Warehousing Service where a Warehousing receives an order for Items to be shipped to a Customer (or partner). The Provider personnel will go pick the items off of the shelf where the Items are located. The personnel will then bring the items to the shipping area and prepare the order to be either packed in a box or labeled and shipped out directly. Confirmation of this data is typically backed up by actual order data that tags each Item picked to an order which was submitted by the Customer to the Provider.
3.2“Unit Pack” or “Pack” means a Warehousing Service which is utilized when a Customer requires Items level fulfillment and the service of taking the Items Picked and packing them into a box to be shipped out to the customer or partner. A box that is Packed will contain 1 or more items and will be labeled accordingly.
3.3“Carton Pick” means a Warehousing Service which is utilized in situations where Customers submit outbound orders to the Warehousing for full cartons of Items to be Picked, labeled and shipped out.
3.4“Pallet Pick” means a Warehousing Service which is utilized when a Customer submits an order to the Warehousing for full pallets of Items to be sent out to a Customer customer or a partner.
4.“Cross Dock” means a Warehousing Service which is utilized when a Customer does not require Items to be stored once such Items are received. Once the Items arrive on a truck, the Items are transferred directly to the shipping dock to be loaded onto another truck to be shipped out to a customer or partner. If the Items being received need to be split up between multiple trucks to be shipped, this will require more handling and will typically lead to a higher cross-dock rate.
5. Additional Terms.
5.1“Pallet” means a unit of measurement to track storage on a per pallet basis, and applicable Warehousing Services are priced in terms of pallets on each invoice submitted by the Provider.
5.2“Square Feet” means a unit of measurement to track storage on a per square foot basis, and applicable Warehousing Services are priced in terms of square feet on each invoice submitted by the Provider.
Shomer, Inc. Terms of Service
Last Updated: [01/15/2020]
Welcome, and thank you for your interest in Shomer, Inc. (“Shomer, Inc. ,” “we,” or “us”) and our website at www.shomerapp.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Shomer, Inc. regarding your use of the Service.
Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND Shomer, Inc. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16).
1. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
2. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name or company name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
3. Shomer, Inc. Service Overview. The Service may provide users (“Customers”) needing warehouse space (“Warehousing” or “Warehouses”) or the associated services set forth in our Warehousing Services Policy, available at the Warehousing Services, with access to functionality that connects such Customers with third party warehouse Providers (“Providers”) that provide Warehousing Services with respect to such Customer’s items (“Items”). Any interactions or disputes between or among you, Customers, Providers, or any other users are solely between you and that user.
3.1 Independent Contractors. Shomer, Inc. and its licensors shall have no liability, obligation or responsibility for any interaction between you and any other user. By agreeing to these Terms, you acknowledge that WE ARE NOT CUSTOMERS AND WE DO NOT PROVIDE Warehousing SERVICES AND THAT YOUR ITEMS WILL BE STORED AT A THIRD PARTY Warehousing. WE DO NOT ACTUALLY PROVIDE Warehousing SERVICES WITH RESPECT TO YOUR ITEMS, AND OUR RESPONSIBILITY AND LIABILITY FOR YOUR ITEMS OR ANY Warehousing SERVICES IS LIMITED AS SET FORTH IN SECTIONS 14 AND 15.
3.2 Listings. Providers may list and Customers may search for Warehousing Services on the Service’s online database (“Listings”). Prior to posting such Listing, Providers must establish an account to receive services via a third-party payment processor indicated by Shomer, Inc. , such as Stripe. Such Listings will include various required fields including availability, as well as a description of the Warehousing Services. Shomer, Inc. may update such required fields at any time, in its sole discretion. Subject to the terms herein, if there is no Statement of Work in effect, a Provider may, in its sole discretion, remove or alter a Listing at any time. Provider acknowledges that Shomer, Inc. may, in its sole discretion, confirm the information in such Listings through any lawful means, including but not limited to visiting such Listing.
3.3 Requests. A Customer can request to book a Listing by submitting a formal request via the Service (“Request”). Such Request must include a detailed description of the Items to be stored, the dates Customer wishes to book such Listing, the Warehousing Services the Customer wishes to use, any additional storage requirements (e.g. regarding temperature, stacking limitations, etc.) and any other information Shomer, Inc. requires in such Request. The Provider may, in its sole discretion, accept or reject such Request.
3.4 Statement of Work.
a. Acceptance. In the event that Provider accepts a Request, the Service will generate a statement of work based on the accepted Request (“Statement of Work”) which is hereby incorporated by reference into and is subject to these Terms.
b. Confidentiality. Prior to viewing a Statement of Work, users will not generally be able to ascertain the identities of Providers and Customers. When a Provider accepts a Customer’s Request, and the Service generates a Statement of Work for Provider and Customer to review, the Statement of Work will disclose the identities of such Provider and Customer to the other. Subject to the confidentiality provisions in an applicable Statement of Work, you agree not to disclose or use any information you learn from a Request or a Statement of Work, including a Provider’s identity and pricing information or the nature of a Customer’s Items, other than pursuant to the provision or receipt of Warehousing Services in accordance with such Statement of Work.
c. Revisions. Up to 15 day prior to the Check-In Date, as defined in the applicable Statement of Work, Provider may propose revisions to the pricing for Warehousing Services to be provided thereunder. The procedure and applicability of such revisions is set forth in the applicable Statement of Work.
d. Performance. The volume of Warehousing Services set forth in a Statement of Work are merely an estimate. Providers are only obligated to provide Warehousing Services with respect to the amount and type of such services set forth in the applicable Statement of Work. If the amount or type of Customer’s Items, or the type of Warehousing Services required is greater from those set forth in the applicable Statement of Work (a “Variance”), the Provider may, in its sole discretion, provide or decline to provide Warehousing Services with respect to such Variance. The pricing for any Variance will be consistent with that set forth in the applicable Statement of Work. Customers are required to pay for all Warehousing Services received from Provider, and will pay the remaining applicable charges corresponding to such Variance.
3.5 Cancellation and Termination.
a. Generally. A Customer can cancel or terminate Warehousing Services, or request that Provider arrange for return of Customer’s Items at any time by contacting Provider via the Service, subject to Customer’s payment of any applicable fees including Charges due, as well as those corresponding to the Minimum Volume. Once Warehousing Services have been cancelled or terminated, Customer has paid any applicable fees, and Customer has retrieved the Items, the Service will not charge Customer for Recurring Charges for the cancelled or terminated Warehousing Services; provided, however, the applicable Charges will continue to accrue, as set forth in the applicable Statement of Work until such retrieval. There are no refunds available for any prepaid Recurring Charges. In the event that a Customer cancels or terminates Warehousing Services in the middle of a billing term, Customer will not be entitled to a refund of a partial month of any Recurring Charges.
b. Default. In the event that Customer’s payments are more than 90 days late, Provider may be entitled to retain Customer’s Items pursuant to a warehouse lien, as set forth in the applicable Statement of Work. To the extent permitted by applicable law, Customer’s applicable Charges will continue to accrue until Provider exercises such lien right.
3.6 Transacting Via the Service. Provider and Customer will conduct all written communications and transactions with respect to Warehousing Services, including invoicing and contracting, solely via the Service’s functionality. Providers and Customers who interact via the Service may not exchange funds, or otherwise transact outside the Service with respect to Warehousing Services for a period of 2 years following the last time such Provider and Customer interacted via the Service. Customer and Provider represent, warrant, and agree to comply with the foregoing in good faith. Provided, however, the restrictions set forth in this Section will not apply with respect to services other than Warehousing Services (“Value Added Services”).
3.7 Customer Warranties. If you are a Customer, you represent, warrant, and agree that:
a. You own your Items, without any liens, and you are authorized to store or otherwise authorize use of your Items in accordance with these Terms.
b. You are solely responsible for timely payment of fees, and ensuring that the subscription does not lapse.
c. You will not use or attempt to use Warehousing Services (i) with respect to Items that Provider expressly prohibits in the applicable Listing or Statement of Work, (ii) with respect to which you do not have all applicable legal clearances, approvals, licenses, and authority, or (iii) which are illegal to possess or provide the Service or Warehousing Services with respect to.
d. All information you convey via the Service, including with respect to your Items, is truthful and accurate.
3.8 Provider Warranties. If you are a Provider, you represent, warrant, and agree that:
a. You are solely responsible for providing the applicable Customer access to the Warehouses as well as the Warehousing Services, as set forth in a Listing or Statement of Work.
b. You will make Warehousing Services available as indicated in the applicable Listing or Statement of Work and will perform such services in a manner consistent with generally accepted industry standards.
c. You will comply with all applicable laws in your use of the Service and in providing Warehousing Services as well as with respect to your employment of employees, contractors, agents, and other personnel.
d. You will provide all equipment and Warehouses necessary to store Items in your Warehouses and provide Warehousing Services, as indicated in the applicable Listing or Statement of Work.
e. You have in place and will maintain all applicable legal clearances, approvals, licenses, and authority in order to store Items in your Warehouses and provide Warehousing Services indicated in the applicable Listing or Statement of Work and will not provide Warehousing Services when it is illegal to do so.
f. You will implement and maintain the insurance policies indicated in the Listing, and provide supporting documentation to Shomer, Inc. or the applicable Customer upon request.
g. All information you convey via the Service, including any Listing you post, is truthful and accurate.
4. General Payment Terms
4.1 Discounts and Promotions. Shomer, Inc. , at its sole discretion, may make promotional offers with different features and different pricing to any of Shomer, Inc. ’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Customer Terms. If you are a Customer, the payment terms in this Section apply to you. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
a. Price. You understand that your use of the Service may result in your being charged for Warehousing Services that are received from Providers and submitted as an invoice via the Service (“Warehousing Charge”) as set forth in the applicable Statement of Work (“Provider Fee”) and any other fees applicable to your use of the Service (together, the “Charges”). Any overall fees that are displayed on the Statement of Work are estimates only, and you acknowledge that actual fees may vary based on the volume of Items provided as well as the volume of Warehousing Services required.
b. Payment. You authorize us or a third-party payment processor, such as Stripe, to charge all Charges to the payment method specified in your account. Upon such payment, Warehousing Charges will be allocated between Provider and Shomer, Inc. as set forth in Section 4.2, and the Provider Fee will be transmitted solely to Shomer, Inc. . If you pay any fees with a credit card, we or the third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your Warehousing Services selection. Charges will be inclusive of all applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Shomer, Inc. .
c. Recurring Charges. The Service may permit you to sign up for Warehousing Services which require periodic or recurring payments (“Recurring Charges”). If you purchase such Warehousing Services through the Service, you authorize us or a third-party payment processor to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account in accordance with Section 3.5, all accrued Recurring Charges on or before the payment due date. Any Recurring Charges will continue unless and until you cancel the Warehousing Services and accept the return of your Items in accordance with Section 3.5 or we or our Providers terminate the provision of the Warehousing Services in accordance with the terms herein. You must cancel and accept the return of your Items prior to the end of the current billing period in order to avoid billing of the next periodic Recurring Charges to your account. We or our payment processor will bill the Recurring Charges to the payment method you provide to us during registration (or to a different payment method if you change your account information).
d. Delinquent Accounts. If accounts have amounts paid that are less than amounts due more than 90 days after the invoice due date, we may remove access to your account.
4.3 Provider Payment Terms.If you are a Provider, the terms of this Section 4.2 apply. In consideration for your use of the Service, we will be entitled to, and a third-party payment processor will transmit to us, a service fee of up to 15% of the applicable Warehousing Charges, as set forth in the Applicable Statement of Work (“Provider Fee”). Such third-party payment processor will transmit the Warehousing Charge, less the Provider Fee (such reduced amount, the “Warehousing Payment”) to you. In order to register and sell Warehousing Services via the Service, you may be required to sign up for an account with a third-party payment processor, such as Stripe. In order to set up an account with such third-party payment processor, or receive Warehousing Payments, you may be required to exit the Service and enter the website of such third-party payment processor. The third-party payment processor may have independent terms of service and privacy policies that will govern information collected during the transaction and the transaction itself, and Shomer, Inc. is not a party to such transactions. You are solely responsible for collection and payment of sales, use, or value added taxes accrued in connection with the Warehousing Payments.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Shomer, Inc. grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Shomer, Inc. an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Shomer, Inc. . The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Shomer, Inc. are protected by intellectual property and other laws. All Materials included in the Service are the property of Shomer, Inc. or its third party licensors. Except as expressly authorized by Shomer, Inc. , you may not make use of the Materials. Shomer, Inc. reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms.
7.1 Third Party Services and Linked Websites. Shomer, Inc. may provide tools through the Service that enable you to export information, including User Content, to third party services, such as Stripe. Your use of Stripe is subject to their legal terms, which are available at By using one of these third party tools, you agree that Shomer, Inc. may transfer that information to the applicable third party service. Third party services are not under Shomer, Inc. ’s control, and Shomer, Inc. is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Shomer, Inc. ’s control, and Shomer, Inc. is not responsible for their content.
7.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
7.3 Independent Contractors. You acknowledge and agree that Shomer, Inc. , Customers, and Providers are independent contractors. No party is an agent, representative, or partner of any other party. No party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, any other party. These Terms will not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. Except as expressly otherwise set forth herein, each party will bear its own costs and expenses in performing under these Terms.
8. User Content.
8.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including Listings, messages, photos, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to Shomer, Inc. . By providing User Content via the Service, you grant Shomer, Inc. a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited License Grant to Other Users. By providing User Content via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties. Shomer, Inc. disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Shomer, Inc. and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Shomer, Inc. , the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Shomer, Inc. to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Shomer, Inc. may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Shomer, Inc. with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Shomer, Inc. does not permit copyright-infringing activities on the Service.
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. violate, or encourage others to violate any of the terms and conditions of these Terms, including those with respect to Customers and Providers in Section 3 or otherwise set forth herein;
b. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or, accessing any other Service account without permission;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Digital Millennium Copyright Act.
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service Providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Team
P.O Box 546912, Surfside, Florida, 33154
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. Shomer, Inc. will promptly terminate the accounts of users that are determined by Shomer, Inc. to be repeat infringers.
11. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, 3.4.d or an applicable Statement of Work, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination, and Modification of the Service.
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
12.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminates. In addition, Shomer, Inc. may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. If no Statement of Work is in effect, you may terminate your account and these Terms at any time by contacting customer service at
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Shomer, Inc. any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 3.1, 3.4.b, 3.5–3.8, 5.3, 6, 7.3, 8, 12.3, and 13–17 will survive.
12.4 Modification of the Service. Shomer, Inc. reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Shomer, Inc. will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Shomer, Inc. and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Shomer, Inc. Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Shomer, Inc. DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Shomer, Inc. DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Shomer, Inc. DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR Shomer, Inc. ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Shomer, Inc. ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
HOWEVER, Shomer, Inc. DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT Shomer, Inc. IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
15. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Shomer, Inc. ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Shomer, Inc. ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.4(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE Shomer, Inc. ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO Shomer, Inc. FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration.
16.1 Generally. In the interest of resolving disputes between you and Shomer, Inc. in the most expedient and cost-effective manner, and except as described in Section 16.2, you and Shomer, Inc. agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Shomer, Inc. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Arbitrator. Any arbitration between you and Shomer, Inc. will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Shomer, Inc. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Shomer, Inc. ’s address for Notice is: Optzzchain, Inc., 11400 W. Olympic Blvd, Suite 1400, Los Angeles, California, 90064. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Shomer, Inc. may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Shomer, Inc. must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Shomer, Inc. will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Shomer, Inc. in settlement of the dispute prior to the arbitrator’s award; or (iii) $10,000.
16.5 Fees. If you commence arbitration in accordance with these Terms, Shomer, Inc. will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Shomer, Inc. for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND Shomer, Inc. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Shomer, Inc. agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications to this Arbitration Provision. If Shomer, Inc. makes any future change to this arbitration provision, other than a change to Shomer, Inc. ’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Shomer, Inc. ’s address for Notice, in which case your account with Shomer, Inc. will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.1 will govern any action arising out of or related to these Terms.
17. Force Majeure. Except for obligations to pay fees due, neither party will be liable to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties (a “Force Majeure Event”). Such a Force Majeure Event will include, without limitation: (a) hostile or war-like action in time of peace or war, including (i) action in hindering, combating, or defending against an actual impending or expected attack by any government or sovereign power or by any authority maintaining or using military, naval, or air forces, or an agent of such government power, authority, or forces, (ii) any weapon of war employing atomic fission or radioactive force whether in time of peace or war, (iii) insurrection, rebellion, revolution, civil war, usurped power, or action taken by governmental authority in hindering, combating, or defending against such an occurrence, (iv) seizure, destruction, or confiscation under quarantine, customs regulations, or (v) order of any government or public authority; (b) strike, lockout, or labor disturbance; (c) riot, civil commotion, or any person or persons taking part in any such occurrence or disorder; (d) acts of God; (e) acts of public enemy; (f) weather; (g) flood; (h) earthquake; or (i) traffic.
18.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Shomer, Inc. submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5 Contact Information. The Service is offered by Shomer, Inc., with mail address at P.O Box 546912, Surfside, FL 33154. You may contact us by sending correspondence to that address or by emailing us at
18.7 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.8 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.