terms of sale
Effective date: December 2024
These Terms of Sale (“ToS”) apply to purchases made by direct purchasers (“Purchaser”) and resellers (“Reseller”) (collectively, “Customer”), unless otherwise agreed upon in a separate written agreement with Shohaus (“we,” “us,” or “our”). By placing an order with Shohaus, you agree to these terms and conditions. If you do not agree, do not place an order.
1. DEFINITIONS
A. “Affiliate” means direct or indirect subsidiaries of Shohaus.
B. “Delivery” for Products is in accordance with the terms agreed to at the time of shipment as indicated on the Order.
C. “Products” means goods that Shohaus provides to Customer under the ToS. Shohaus Products exclude Third Party Branded Products.
D. “Providers” means entities (other than Customer) whose components, have been incorporated into Products
E. “Reseller” means a Customer that makes goods that Shohaus provided under the ToS available for sale.
F. “Third Party Branded Products” means goods that are not Shohaus branded. Third Party Branded Products may include, without limitation, products manufactured, created, or licensed on behalf of Shohaus or its Affiliates.
3. RESELLERS
A. Special Terms for Resellers. Subject to these TOS, Resellers are permitted to identify themselves as a Shohaus "Reseller" solely in connection with their resales of Products. Except as otherwise stated herein, Reseller agrees to not use the Shohaus trademark, logo or service marks ("Shohaus Marks") or copyrighted materials without Shohaus’ prior written permission. Reseller agrees to not alter or modify the Shohaus Marks, use the Shohaus Marks in connection with product that does not originate with Shohaus or use the Shohaus Marks in a confusing way that suggests that Shohaus sponsors or endorses Reseller or Reseller’s products or services, or confuses the Shohaus brand with another brand. Shohaus Resellers may use the Shohaus wordmarks in any written, photo or video content to refer to Shohaus branded products and may display in photos or videos genuine Shohaus branded products in the same bearing the Shohaus Marks. All goodwill arising from Reseller’s use of Shohaus Marks inures to the benefit of Shohaus.
B. Pricing and Payment; Refunds. Reseller will independently set its own pricing to each of their customers. Notwithstanding the forgoing, Reseller agrees to comply with the Shohaus Internet Minimum Advertised Pricing Policy located here, and further agrees to execute any documentation provided by Shohaus to evidence agreement to this policy. Reseller agrees to bear all risk of non-payment by their customers and is solely responsible for all costs and expenses. Reseller may not terminate a Reseller Order or receive any refunds due to non-payment by their customers. Shohaus will not provide any refund to their customers under our standard return policy. Shohaus will refund the applicable amounts to Reseller for distribution to their customers. Reseller agrees to cooperate with Shohaus in connection with any such refund.
C. Business Practices. Reseller agrees not to represent itself as an agent or employee of Shohaus Reseller will not make any representations regarding Shohaus, on Shohaus’ behalf, or about any Products. Reseller will not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Shohaus or its products and agree to comply with all applicable federal, state and local laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. Reseller further agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
4. TERM; TERMINATION OR SUSPENSION
A. Term. This ToS is effective upon the earlier of Customer’s issuance of an Order to Shohaus, or Customer’s acceptance of the ToS. The ToS continues until it is terminated in accordance with this Section.
B. Termination. Either party may terminate the ToS: (i) for a material breach by the other party that is not cured within thirty days of the breaching party’s receipt of written notice of the breach; or (ii) if a party declares bankruptcy or is adjudicated bankrupt or a receiver or trustee is appointed for substantially all of its assets. In addition, Shohaus may terminate the ToS with ten days’ written notice if: (a) Customer does not make payment as required by the ToS (where the payment is not subject to a good faith dispute); or (b) Customer fails to make the payment within ten days after receiving written notice of the past due amount.
C. Survival. The provisions relating to payment of outstanding fees, records and audit, confidentiality, and liability will survive termination, all rights of action accruing prior to termination, along with any other provision of the ToS that, expressly, or by its nature and context, is intended to survive.
5. INDEMNITY
Customer will defend and indemnify Shohaus and Affiliates against any third party claim resulting or arising from Customer’s: (i) violation of Shohaus or Affiliates’ proprietary rights; or (iii) misrepresentation of facts regarding an export license or any allegation made against any Shohaus or Affiliates due to Customer’s violation or alleged violation of applicable export laws.
6. LIMITATION OF LIABILITY
A. Limitations on Damages. The limitations, exclusions and disclaimers stated below apply to all Disputes (as defined in Section 8F (“Governing Law; Informal Dispute Resolution; Attorney’s Fees”). The terms of this Section are agreed allocations of risk constituting part of the consideration for Shohaus’ and Affiliates’ sale of products to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless whether a party has been advised of the possibility of the liabilities.
A. (1). Limitation on Direct Damages. Except for Customer’s obligations to pay for products , Customer’s violation of the restrictions on use of products or Shohaus' intellectual property rights, Customer’s indemnity obligation stated in Section 5 (“Indemnity”), each party’s total liability for Disputes is limited to the amount Customer paid to Shohaus for the Order from which the Dispute arose, but excluding amounts received as reimbursement of expenses or payment of taxes.
A. (2). No Indirect Damages. Except for Customer’s payment obligations and violation of Shohaus’ intellectual property rights, neither Shohaus nor Customer has liability to the other for special, consequential, exemplary, punitive, incidental, or indirect damages, or for lost profits, loss of revenue, loss of data, or loss of use, or procurement of substitute products.
B. Limitation Period. Except as stated in this Section 6C, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within eighteen months after the cause of action accrues.
C. Warranty. Any warranty does not cover problems that arise from: (i) accident or neglect by Customer or any third party; (ii) any third party items with which the Product is used or other causes beyond Shohaus’ control; (iii) installation, operation, or use not in accordance with Shohaus’ instructions or applicable documentation; (iv) use in an environment, in a manner, or for a purpose for which the Product was not designed; (v) modification, alteration, or repair by anyone other than Shohaus or its authorized representatives; or (vi) causes attributable to normal wear and tear. Other than the warranties set forth in these TOS, and to the maximum extent permitted by applicable law, Shohaus and Affiliates, and their Providers: (i) make no other express warranties; (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement; and (iii) disclaim any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.
7. CONFIDENTIALITY
“Confidential Information” is any information, technical data, or know-how furnished, whether in written, oral, electronic, website-based, or other form, by the discloser to the recipient that: (i) is marked, accompanied, or supported by documents clearly and conspicuously designating the documents as "confidential", “internal use”, or the equivalent; (ii) is identified by the discloser as confidential before, during, or promptly after the presentation or communication; or (iii) should reasonably be known by recipient to be confidential. This ToS imposes no obligation upon a recipient with respect to information designated as confidential which: (a) the recipient can demonstrate was already in its possession before receipt from the discloser; (b) is or becomes publicly available through no fault of the recipient or its Representatives (defined below); (c) is rightfully received by the recipient from a third party who has no duty of confidentiality; (d) is disclosed by the discloser to a third party without a duty of confidentiality on the third party; or (e) is independently developed by the recipient without a breach of the ToS. If a recipient is required by a government body or court of law to disclose Confidential Information, to the extent permitted by law, the recipient agrees to give the discloser reasonable advance notice so that the discloser may contest the disclosure or seek a protective order. Recipient will use Confidential Information only for the purpose of and in connection with the evaluation of a potential, or continuation of, a business transaction or relationship between the parties. Recipient may disclose Confidential Information to its directors, officers, employees, and employees of its affiliates, as well as its and its affiliates’ contractors, advisors, and agents, so long as those individuals have a need to know in their work for recipient in furtherance of the potential or continued business transaction or relationship, and are bound by obligations of confidentiality at least as restrictive as those imposed on recipient in this ToS (collectively, “Representatives”). Recipient is fully liable for any breach of this ToS by its Representatives. Recipient will use the same degree of care, but no less than reasonable care, as the recipient uses with respect to its own similar information to protect the Confidential Information. Recipient may only disclose Confidential Information as authorized by this ToS. The terms of this ToS do not restrict the right of recipient to independently design, develop, acquire, market, service, or otherwise deal in, directly or indirectly, products competitive with those of the discloser so long as the recipient does not use any of the discloser's Confidential Information for those activities. Unless the parties otherwise agree in writing, a recipient's duty to protect Confidential Information expires three years from the date of disclosure. However, subject to the terms of this Section, the obligation to protect technical information about a discloser’s current products and all information about possible unreleased products never expires. Upon the discloser's written request, recipient will promptly return or destroy all Confidential Information received from the discloser, together with all copies. Notwithstanding the foregoing, recipient’s professional advisors (e.g., lawyers and accountants) may retain in confidence one file copy of their respective work papers and final reports in accordance with their professional and ethical obligations.
8. MISCELLANEOUS
A. Notices. The parties will provide all notices under this ToS in writing. Customer must provide notices to Shohaus, at hello@Shohaus.com.
B. Excused Performance. Except for payment of amounts due and owing, neither Shohaus nor Customer will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
C. Assignment. Customer may not assign the ToS, or an Order, or any right or obligation under the ToS, or an Order, or delegate any performance, without Shohaus’ prior written consent, which will not be unreasonably withheld. Even if Shohaus consents to an assignment or delegation, Customer remains responsible for all obligations to Shohaus under the ToS, or Order that Customer incurred prior to the effective date of the assignment or delegation. Customer attempts to assign or delegate without Shohaus’ prior, written consent are void.
D. Governing Law; Informal Dispute Resolution; Attorney’s Fees. The ToS, and any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the ToS or any Order (“Dispute”) is governed by the laws of the State of California (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in California will have exclusive jurisdiction for any Disputes. Customer and Shohaus agree to submit to the personal jurisdiction of the state and federal courts located within Orange County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Customer nor Shohaus are entitled to join or consolidate claims by or against other customers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against one or more Shohaus or any Shohaus Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods, or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within thirty days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Shohaus’ efforts to collect overdue amounts from Customer) each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees.
E. Waiver. Failure to enforce a provision of the ToS will not constitute a waiver of that or any other provision of the ToS.
F. Independent Contractors. The parties are independent contractors for all purposes under the ToS and cannot obligate any other party without prior written approval. The parties do not intend anything in the ToS to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.
G. Severability. If any part of the ToS or document that incorporates the ToS by reference is held unenforceable, the validity of all remaining parts will not be affected.
H. Privacy Statements. For information about Shohaus’ Privacy Statements, please read Shohaus’ privacy policy at www.Shohaus/privacy-policy. These policies explain how Shohaus treats Customer personal information and protects Customer privacy.
I. Trade Compliance. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except with Shohaus’ prior written authorization and in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions.
J. Entire Agreement; Conflicts. The ToS, and, if Customer is directly purchasing from Shohaus, the Shohaus’ Order: (i) comprises the complete statement of the agreement of the parties with regard to its subject matter; and (ii) may be modified only in a writing signed by Customer and Shohaus. All terms of any Customer Order, including but not limited to (1) any terms that are inconsistent or conflict with this ToS, , and (2) any pre-printed terms, have no legal effect and do not modify or supplement the ToS, even if Shohaus does not expressly object to those terms when accepting a Customer Order. No party is relying upon the representations of statements of the other that are not fully expressed in this ToS, and each party expressly disclaims reliance upon any representations or statements not expressly set forth in this ToS. Any claims by any party of fraud in the inducement of this ToS or any Customer Order based on any statements, representations, understandings, or omissions, whether oral or written, that are not fully expressed in this ToS are expressly waived and released.
K. Future Changes to this Agreement. From time to time, we may modify these TOS. The version of the TOS in place at the time you submit each Customer Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication.