Terms of Service Agreement
Last Updated: 2/23/2021
DO NOT USE THIS SERVICE IF: (A) YOU ARE EXPERIENCING A MEDICAL EMERGENCY, (B) YOU ARE THINKING ABOUT SUICIDE; (C) YOU ARE CONSIDERING TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, OR (D) YOUR HEALTHCARE PROVIDER HAS ADVISED AGAINST YOUR PARTICIPATION.
IMMEDIATELY CALL “911” IF YOU HAVE A MEDICAL EMERGENCY OR FEEL THAT YOU OR ANY OTHER PERSON MAY BE IN DANGER.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF SHIMMER, INC. (“SHIMMER,” “US,” AND “WE”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY SHIMMER. THIS AGREEMENT GOVERNS YOUR USE OF THE WEBSITE AND THE SERVICES, INFORMATION AND CONTENT AVAILABLE OR ENABLED VIA THE WEBSITE (THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY AND, IF APPLICABLE, ON BEHALF OF ANY COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU USE THE SERVICES AND TO BIND THAT ENTITY TO THIS AGREEMENT, AND (3) YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IF THAT IS NOT 18 YEARS OF AGE WHERE YOU LIVE) OR THAT YOU HAVE REVIEWED THIS AGREEMENT WITH YOUR PARENT OR LEGAL GUARDIAN AND HE OR SHE AGREES TO THIS AGREEMENT ON YOUR BEHALF AND TAKES FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THEM. YOU AGREE THAT YOU (AND YOUR PARENT OR GUARDIAN) ARE FULLY ABLE AND COMPETENT TO ENTER INTO AND COMPLY WITH THIS AGREEMENT. IF YOU ARE UNDER 18 YEARS OF AGE, YOU UNDERSTAND THAT YOU CANNOT LATER VOID THIS AGREEMENT WITH SHIMMER AS A MINOR WITHOUT LOSING ACCESS TO YOUR ACCOUNT (AS DEFINED IN SECTION 2.1) AND THE SERVICES, AND YOUR PARENTS ARE RESPONSIBLE FOR YOUR ACTIONS AND ANY OBLIGATIONS YOU HAVE INCURRED WHILE ENJOYING THE BENEFITS OF ACCESS TO THE FEATURES AND FUNCTIONS OF THE SERVICES AS IF YOU WERE AN ADULT. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
NOTICE OF AUTO-RENEWAL: IF YOU PURCHASE A SUBSCRIPTION THROUGH THE SERVICE FOR AN INITIAL PERIOD (SUCH AS A MONTHLY OR ANNUAL SUBSCRIPTION), THEN THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL PERIOD AT SHIMMER’S THEN-CURRENT FEE FOR SUCH SUBSCRIPTION, UNLESS YOU OPT-OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. All Supplemental Terms are hereby incorporated into this Agreement by reference. This Agreement and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY SHIMMER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Shimmer will make a new copy of the Agreement available on the Website, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Agreement. If we make material changes to the Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account or another manner through the Services (which may include posting an announcement on our Website). Shimmer may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you agree to stop using the Website and the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
- Use of the Services. The Website, Services (including Peer Support Services, as defined in Section 1.1.), and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Shimmer Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Shimmer grants you a limited license to use the Shimmer Properties solely for your personal use. Unless otherwise specified by Shimmer in a separate license, your right to use any Shimmer Properties is subject to the Terms.
- Overview of Peer Support Services. Subject to the terms of this Agreement, Shimmer matches Members with other Members to participate in peer support groups (the “Peer Support Group”) led by with independent contractors of Shimmer (each a “Peer Coach” and collectively, “Peer Coaches”) for purposes of receiving emotional support, life/wellness coaching, general advice, collegial interactions or other similar, non-medical services (“Peer Support Services”). Peer Coaches are not trained or licensed medical professionals and are not qualified to diagnose, treat or manage any healthcare conditions, including behavioral health conditions. By accepting the terms of this Agreement, (a) you acknowledge and understand that Peer Coaches are not trained or licensed as medical professionals, and you agree to not request that Peer Coaches provide you with any medical or healthcare advice or guidance, and (b) you agree to not rely upon any information provided to you by Peer Coaches, content received through the Services or other Members when making important lifestyle, health, financial or relationship decisions, and that any decisions that you make with respect to your lifestyle, health, financial or relationships will be made based solely upon your own independent judgement. The materials available through our Services, including information obtained from the Peer Coaches, is for informational purposes only and should not considered as a diagnosis or professional recommendation or endorsement of any medical treatment, product, drug or any other healthcare service. Our Services are not intended to be a substitute for professional medical advice or treatment. For purposes of this Agreement, “Members” are Registered Users (as defined in Section 2.1) that have joined a Peer Support Group.
- Updates. Shimmer may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. Under this Agreement, you consent to these automatic updates. If you do not wish to use such Updates, your sole remedy is to terminate your Account. If you do not terminate your Account, you will receive Updates automatically. Your continued use of the Shimmer Properties is your agreement to this Agreement with respect to the Shimmer Properties.
- Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any Shimmer Properties or any portion of Shimmer Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Shimmer Properties (including images, text, page layout or form) of Shimmer; (c) you shall not use any metatags or other “hidden text” using Shimmer’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Shimmer Properties; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access any Shimmer Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of any Shimmer Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Shimmer Properties. Any future release, update or other addition to Shimmer Properties shall be subject to the Terms. Shimmer, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Shimmer Properties terminates the licenses granted by Shimmer pursuant to the Terms.
- Third-Party Materials. As a part of Shimmer Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Shimmer to monitor such materials and that you access these materials at your own risk.
- Limitations of Services and Related Disclaimers of Liability.
- YOU MUST IMMEDIATELY CALL “911” AND NOTIFY THE RELEVANT AUTHORITIES IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, THINKING ABOUT SUICIDE, OR IF YOU ARE CONSIDERING TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS OR IF YOU FEEL THAT YOU OR ANY OTHER PERSON MAY BE IN ANY DANGER OR IF YOU HAVE ANY MEDICAL EMERGENCY.
- THE SERVICES DO NOT INCLUDE THE PROVISION OF ANY HEALTHCARE SERVICES, INCLUDING, BUT NOT LIMITED TO, THERAPY SERVICES, MEDICAL DIAGNOSIS OR TREATMENTS, OR ADVICE CONCERNING THE SAME. SHIMMER IS NOT A HEALTHCARE PROVIDER AND DOES NOT CONTRACT WITH HEALTHCARE PROVIDERS FOR SERVICES. PEERS COACHES ARE NOT LICENSED HEALTHCARE PROFESSIONALS, AND ARE NOT AUTHORIZED TO PROVIDE HEALTHCARE SERVICES THAT REQUIRE PROFESSIONAL LICENSURE. IF YOU REQUIRE MEDICAL OR THERAPY SERVICES, PLEASE CONTACT A LICENSED HEALTHCARE PROFESSIONAL FOR ASSISTANCE.
- SHIMMER IS NOT INVOLVED IN ANY WAY WITH THE SUBSTANCE OF THE MEMBER-PEER COACH RELATIONSHIP, NOR DOES SHIMMER AUDIT, MONITOR, APPROVE, VALIDATE OR SUPPORT THE ADVICE OR INFORMATION GIVEN TO YOU BY A PEER COACH OR OTHER MEMBERS. SHIMMER STRONGLY RECOMMENDS THAT YOU CONSULT WITH YOUR HEALTHCARE PROVIDER BEFORE RECEIVING SERVICES AND TAKE THE ADVICE OF YOUR HEALTHCARE PROVIDER IF HE/SHE RECOMMENDS AGAINST YOUR RECEIPT OF THE SERVICES.
- WHILE THE SERVICES WILL HELP YOU COMMUNICATE WITH A PEER COACH OR OTHER MEMBERS, SHIMMER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER AS TO WHETHER YOU WILL FIND THE SERVICES RELEVANT, USEFUL, CORRECT, RELEVANT, SATISFACTORY OR SUITABLE TO YOUR NEEDS.
- Registering Your Account. In order to access certain features of Shimmer Properties, you must become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account through the Website or Services (“Account”).
- Registration Data. In registering an Account through the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract or that you have reviewed this Agreement with your parent or legal guardian and he or she agrees to this Agreement on your behalf; and (n) not a person barred from using Shimmer Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Shimmer Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Shimmer immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Shimmer has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Shimmer has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account on behalf of someone other than yourself. Shimmer reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Shimmer Properties if you have been previously removed by Shimmer, or if you have been previously banned from any of Shimmer Properties.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Shimmer Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Shimmer Properties.
- Responsibility for Content
- No Obligation to Pre-Screen Content. You acknowledge that Shimmer has no obligation to pre-screen Content (including, but not limited to, User Content), although Shimmer reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, video, message, voice or other communications. In the event that Shimmer pre-screens, refuses or removes any Content, you acknowledge that Shimmer will do so for Shimmer’ benefit, not yours. Without limiting the foregoing, Shimmer shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
- Use of Personal Information. Members may use the Services without sharing personal information (other than first name) with other Members and/or Peer Coaches. Members acknowledge that any User Content that Member Shares, including personal information is made in Member’s sole discretion, and at Member’s sole risk. Notwithstanding the foregoing, Members agree not to share any User Content disclosed during the Peer Support Services outside the Peer Group.
- Storage. Unless expressly agreed to by Shimmer in writing elsewhere, Shimmer has no obligation to store Your Content that you Make Available on Shimmer Properties. Shimmer has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Shimmer Properties.
- Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Shimmer with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) to make any purchases through the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Shimmer with your credit card number and associated payment information, you agree that Shimmer may authorize the Payment Provider to immediately charge you for all amounts due and payable with no notice or consent to you. You agree to immediately notify Shimmer of any change in your billing address or the credit card used for payment hereunder. In the event that your credit card expires or Shimmer, our affiliates, or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. Shimmer reserves the right to cancel the request if: (i) your payment method is declined; or (ii) you have been previously banned or removed from the Shimmer Properties for any reason. Shimmer reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Shimmer Properties or by e-mail delivery to you.
- Taxes. Users will be liable for any taxes required to be paid on the Services provided under the Agreement.
- Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Shimmer, Inc. 1015 Fillmore St. #12411, San Francisco, 94115.
- Automatic Renewal
- Subscription. Shimmer charges a subscription fee (the “Subscription Fee”) for a subscription to the Support Group Services (“Subscription(s)”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis (depending on the type of subscription plan offered by Shimmer and that you have selected when purchasing a Subscription) and commence on the date you first start your Subscription. Once you have purchased a Subscription, your Subscription will continue indefinitely until terminated in accordance with this Agreement and you will be charged Shimmer’s then-current Subscription Fees at the commencement of each Billing Cycle.
- Cancellation. You may cancel your Subscription renewal through your Account or by contacting us at: email@example.com prior to the end of the then-current Billing Cycle. If you cancel your Subscription, you may use your Subscription until the end of the current Billing Cycle and your Subscription will not be renewed after the then-current Billing Cycle ends. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current Billing Cycle.
- Subscription Fee Payment. By submitting your payment information, you authorize us to charge you or your Payment Provider for all Subscription Fees incurred through your Account at the beginning of each Billing Cycle. Should automatic billing fail to occur for any reason, we will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the Billing Cycle as indicated on the invoice. If Shimmer does not receive payment from you, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Shimmer may either terminate or suspend your Subscription and continue to attempt to charge you or your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
- Free Trials. Any free trial or other promotion to the Service must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable Subscription Fee. If you are inadvertently charged for a Subscription, please contact Shimmer to have the charges reversed.
- User Conduct.
- Community Guidelines. You agree to abide by our Community Guidelines. Without limiting the foregoing, any Member may be disciplined, suspended or terminated for any of the following reasons (or any additional reason in the sole discretion of Shimmer): (a) violations of any terms of this Agreement or our Community Guidelines; and (b) communication of information concerning other Members outside the Peer Support Group. Any termination of a Member due to misconduct described herein shall be in Shimmer’s sole discretion, without any refund of any Fees or other charges.
- Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
- Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Shimmer Properties (including your Account), or access to or use of Shimmer Properties;
- Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Shimmer Property;
- Use Shimmer Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;
- Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Shimmer Properties; or
- Market any goods or services for any business purposes on or in connection with any Shimmer Properties.
- General. In connection with your use of Shimmer Properties, you shall not:
- Make Available any Content that, in Shimmer’s sole discretion, (i) is unlawful, tortious, defamatory, abusive, profane, vulgar, pornographic, obscene, libelous, or racially, ethnically or otherwise objectionable (including nudity); (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
- Harm minors in any way;
- Impersonate any person or entity, including, but not limited to, Shimmer personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
- Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, moral, publicity or other proprietary or contractual rights;
- Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
- Register for more than one Account or register for an Account on behalf of an individual other than yourself;
- Stalk or otherwise harass, bully or intimidate any other user of our Shimmer Properties; or
- Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
- Investigations. Shimmer may, but is not obligated to, monitor or review Shimmer Properties and Content at any time. Without limiting the foregoing, Shimmer shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Shimmer does not generally monitor user activity occurring in connection with Shimmer Properties or Content, if Shimmer becomes aware of any possible violations by you of any provision of the Agreement, Shimmer reserves the right to investigate such violations, and Shimmer may, at its sole discretion, immediately terminate your license to use Shimmer Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- Shimmer Properties. Except with respect to Your Content and User Content, you agree that Shimmer and its suppliers and licensors own all rights, title and interest in and to all Shimmer Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or any other Shimmer Properties.
- Trademarks. “Shimmer” and other related graphics, logos, service marks and trade names used on or in connection with Shimmer Properties or in connection with the Services are the trademarks of Shimmer and may not be used without permission. Other trademarks, service marks and trade names that may appear on or in Shimmer Properties are the property of their respective owners.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Shimmer Properties.
- Your Content. Shimmer does not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in Shimmer Properties you represent that you own or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. In addition to any other license granted under this Agreement, you grant Shimmer a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of: (a) operating, improving and providing the Services; and (b) compiling statistical and other information related to the performance, operation, and use of the Service. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Shimmer Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that we may display advertising with or in connection with Your Content. You further acknowledge and agree that Shimmer has no obligation to you in connection with any advertising displayed on or in connection with the Shimmer Properties (including no obligation to share any revenue received by Shimmer as a result of any such advertising). You agree that you, not Shimmer, are responsible for all of Your Content that you Make Available on or in Shimmer Properties.
- Account. Notwithstanding anything contained herein to the contrary, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Shimmer.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Shimmer through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Shimmer has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Shimmer a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Shimmer Properties.
- Interactions with Other Users. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Shimmer reserves the right, but has no obligation, to intercede in such disputes. You use all User Content and interact with other Users at your own risk. You agree that Shimmer will not be responsible for any liability incurred as the result of such interactions.
- Third-Party Websites, Applications & Ads. Shimmer Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Shimmer Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Shimmer. Shimmer is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Shimmer provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party
- Indemnification. You agree to indemnify and hold Shimmer, its successors, assigns, parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Shimmer Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of the Services or any other Shimmer Properties; (c) your violation of the Terms (including, without limitation, your submission of false or misleading information through the Services); (d) your violation of any rights of another party, including any Users; (e) your interactions with other Users; and (f) your violation of any applicable laws, rules or regulations. Shimmer reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Shimmer in asserting any available defenses. This provision does not require you to indemnify any of the Shimmer Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Shimmer Properties.
- Disclaimer of Warranties and Conditions
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SHIMMER PROPERTIES IS AT YOUR SOLE RISK, AND SHIMMER PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHIMMER EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
- SHIMMER MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SHIMMER PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SHIMMER PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SHIMMER PROPERTIES WILL BE ACCURATE OR RELIABLE.
- SHIMMER MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES.
- ANY CONTENT ACCESSED THROUGH SHIMMER PROPERTIES, IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SHIMMER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SHIMMER LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SHIMMER MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SHIMMER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SHIMMER PROPERTIES.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS (INCLUDING MEMBERS AND PEER COACHES) OF SHIMMER PROPERTIES. YOU UNDERSTAND THAT SHIMMER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SHIMMER PROPERTIES.
- Limitation of Liability
- Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SHIMMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT SHIMMER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL SHIMMER BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO SHIMMER BY USER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF SHIMMER FOR (A) DEATH OR PERSONAL INJURY CAUSED BY SHIMMER’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY SHIMMER’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHIMMER AND YOU. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
- Termination. If you want to terminate the Services provided by Shimmer, you may do so by emailing us at: firstname.lastname@example.org. We reserve the right to terminate your access to the Shimmer Properties, at any times, for any reason, in our sole discretion.
- Effect of Termination. Termination of the Services includes removal of access to the Services and barring of further use of the Services. Upon termination of the Services, your right to use the Services will automatically and immediately terminate. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases and Shimmer will not have any liability whatsoever to you for any deletion of Your Content. Shimmer will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- International Users. Shimmer Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Shimmer intends to announce such Services or Content in your country. Shimmer Properties are controlled and offered by Shimmer from its facilities in the United States of America. Shimmer makes no representations that Shimmer Properties are appropriate or available for use in other locations. Those who access or use Shimmer Properties from other countries do so at their own volition and are responsible for compliance with local law. Shimmer reserves the right to limit the availability of the Website and/or Services to any person, geographic area, or jurisdiction it so desires at any time and in our sole discretion.
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Shimmer and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement.
- You agree that any dispute or claim relating in any way to your access or use of the Website or Services or to any aspect of your relationship with Shimmer, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Shimmer may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
- This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Shimmer, Inc., Attn: Legal, 1015 Fillmore St. #12411, San Francisco, 94115. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Shimmer will pay them for you. In addition, Shimmer will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Shimmer will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Shimmer. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND SHIMMER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Shimmer are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 18.6.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Shimmer, Inc., Attn: Legal, 1015 Fillmore St. #12411, San Francisco, 94115, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Shimmer username (if any), the email address you used to set up your Shimmer account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Shimmer.
- Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Shimmer makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Shimmer.
- Procedures for Making Claims of Copyright Infringement. It is Shimmer’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Shimmer by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Shimmer Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Shimmer Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Shimmer’s Copyright Agent for notice of claims of copyright infringement is as follows: Shimmer, Inc., 1015 Fillmore St. #12411, San Francisco, 94115 Attn: Jon Wang.
- General Provisions.
- Electronic Communications. The communications between you and Shimmer use electronic means, whether you visit Shimmer Properties or send Shimmer e-mails, or whether Shimmer posts notices on Shimmer Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Shimmer in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Shimmer provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Shimmer Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Shimmer Properties.. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Shimmer Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Shimmer’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Shimmer shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Shimmer Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Shimmer agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
- Notice. Where Shimmer requires that you provide an e-mail address, you are responsible for providing Shimmer with your most current e-mail address. In the event that the last e-mail address you provided to Shimmer is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Shimmer’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Shimmer at the following address: Shimmer, Inc., Attn: Legal, 1015 Fillmore St. #12411, San Francisco, 94115. Such notice shall be deemed given when received by Shimmer by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer Shimmer Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Shimmer Properties, and any other applicable laws. In particular, but without limitation, Shimmer Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Shimmer Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Shimmer Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Shimmer are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Shimmer products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.