We reserve the right to modify this Agreement at any time. All changes will be effective immediately upon posting of the updated Agreement to the Service and, by accessing or using the Service after changes are posted, you agree to those changes unless, in the case of material changes only, you choose to exercise your right below to terminate your Service account if the material changes are not acceptable to you. Material changes will be clearly posted on the Service or otherwise communicated to you.
- Your Account: You will be required to create an account in order to use the Service. You will be required to submit certain information in order to create your account and will be required to establish a password. You are responsible for maintaining the confidentiality of any information you use in connection with the Service, including any username, your password, and any invitation code provided by Sherpa. You are responsible for all activity on your account. If you believe someone else has accessed your account, please change your password and notify us immediately at email@example.com. You will not transfer your Service account to or share your Service account with any other person. Your Service account is personal to you.
- Limited License: Provided you comply with this Agreement, Sherpa hereby grants you a limited, non-exclusive, revocable, nonassignable, nontransferable, nonsublicensable license to access and use the Service, for the duration of your subscription to the Service, solely for your internal business purposes to conduct your marketing campaigns and, in any event, in accordance with any related documentation provided by Sherpa.
- USE RESTRICTIONS: You will not, nor will you permit, direct, or assist any person or entity to:
- Access or use the Service for purposes other than as expressly permitted by this Agreement;
- Copy, reproduce, duplicate, replicate, display, publish, post, distribute, license, sell, rent, lease, encumber, or transfer the Service or any part thereof;
- Adapt, update, translate, modify, or prepare any derivative works of the Service or any part thereof;
- Disassemble, decompile, reconfigure, reverse-engineer, discover the underlying ideas behind, or discover the source code of the Service or any part thereof (except to the extent applicable laws may specifically prohibit this restriction);
- Combine the Service or any part thereof with other computer code or materials of any kind;
- Obscure, remove, or alter any proprietary markings, designations, legends, symbols, labels, or notices in or on the Service;
- Develop, market, or provide on your own behalf or any other person’s or entity’s behalf any software, products, or services that compete with or are substantially similar to the Service or any of its features;
- Use the Service to develop, create, produce, enhance, or add to any database;
- Access, use, or analyze the Service for any purpose that is to Sherpa’s detriment or commercial disadvantage;
- Use the Service as part of any effort to compete with Sherpa or to provide services as a service bureau;
- Act maliciously against the business interests or reputation of Sherpa or any Service user;
- Engage in data mining or similar data gathering or extraction activities or retrieve data or other content from the Service for purposes of creating or compiling that content for any purpose other than your authorized use of the Service as permitted by the above license;
- Access, use, or copy any portion of the Service, including any of its content, through the use of indexing agents, spiders, scrapers, bots, web crawlers, or other automated devices or mechanisms;
- Use the Service for unlawful purposes;
- Use the Service in a manner that infringes, violates, or misappropriates our or any third party’s rights, including patent, copyright, trademark, trade secret, other intellectual property rights, and privacy rights;
- Send or post any unsolicited messages, chain letters, spam, or junk mail using the Service;
- Impersonate or attempt to impersonate another person or business while using the Service;
- Commit fraud or falsify information in connection with your use of the Service;
- Submit or transmit through or using the Service any information, content, or messages that are defamatory, libelous, indecent, pornographic, obscene, otherwise objectionable or harmful, or that violates the legal rights of third parties;
- Use the Service in combination with any other products, software, or services without our specific prior written consent;
- Post, transmit, input, upload, or otherwise provide any information or materials that contain viruses, worms, Trojan horses, logic bombs, time bombs, cancelbots, malware, ransomware, adware, or other harmful computer code or programming routines, including those designed to or that reasonably may disable, damage, impair, interfere with, surreptitiously intercept, or expropriate the Service or any computers, hardware, software, system, data, or networks; nor
- Engage in activities that aim to render the Service or associated services inoperable or to make their use more difficult.
- Intellectual Property: The Service (including its text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, APIs, user interface, user experience, data, trademarks, logos, slogans, names of products and services, documentation, other components and content, and the design, selection, and arrangement of content), all right, title, and interest in and to the Service, and all ideas, concepts, know-how, methodologies, techniques, discoveries, and inventions related to the same (including all patent, copyright, trademark, trade secret, and other intellectual property and proprietary rights throughout the world in or to any of the foregoing), as well as all modifications, enhancements, improvements, and derivative works of any of the foregoing, regardless of when created or by whom, are exclusively the property and will remain exclusively the property of Sherpa or, as applicable, its suppliers and licensors.
The Service is protected by copyright, trademark, and other intellectual property laws. Any unauthorized use of any trademarks, trade dress, copyrighted materials, or any other intellectual property belonging to Sherpa or any third party is strictly prohibited and may be prosecuted to the fullest extent of the law. You agree to respect all copyright and other legal notices, information, and restrictions on or in any content on or accessed through the Service. The Service may contain references to third-party marks and copies of third-party copyrighted materials, which are the property of their respective owners.
Except as may be expressly stated in this Agreement, no licenses or other rights, express or implied, are granted by Sherpa to you under any patent, copyright, trademark, trade secret, or other intellectual property right of Sherpa and all such rights are reserved and retained by Sherpa. Additionally, you specifically acknowledge and understand that this Agreement does not confer upon you or any other person or entity any interest in or right to use any trademark or service mark of Sherpa or pertaining to the Service, including “Sherpa” and “leadsherpa.com.” You will not, without our specific prior written consent, use our names, logos, trademarks, or service marks. Prohibited uses and disclosures include advertising and marketing materials, publications, sales presentations, press releases, and public announcements.
Copyright © 2019-2020 Sherpa, Inc. All rights reserved.
- Term and Termination: This Agreement commences on the earlier of (a) your creation of a Service account or (b) your first access to or use of the Service and continues, unless terminated in accordance with this Agreement, for an initial subscription term of 90 days. This Agreement will then automatically renew for subsequent 30-day renewal terms unless and until terminated by either party in accordance with this Agreement. You may terminate this Agreement at any time and for any reason, including if we make material changes to this Agreement that are not acceptable to you, upon 30 days’ prior written notice to Sherpa.
- Responsibility and Applicable Laws:
Responsibility for Text Messages. You are responsible for all text messages sent or received using the Service through or using your account, including any messages received by unintended recipients, and for the legality and appropriateness thereof. Sherpa is not responsible for any text messages. You acknowledge and understand that text messages are transmitted in an unencrypted format and that therefore Sherpa cannot guarantee that text messages or any other communications sent or received using the Service will be completely secure. By sending text messages through or using the Service you represent and warrant that you have all rights, permissions, and consents necessary to send those text messages, including any required by the TCPA (as defined below) or other applicable laws. You acknowledge and agree that Sherpa may, pursuant to a subpoena, summons, search warrant, governmental order, or other lawful process, make text messages available to third parties.
Compliance with Law. All marketing campaigns are yours alone, as Sherpa is merely a passive technology provider. You acknowledge and agree that your use of the Service (including the transmission of text messages) is subject to certain laws and regulations and that you are required to use the Service in full compliance with those laws and regulations, including without limitation the Federal Trade Commission’s Telemarketing Sales Rule, the Federal Communications Commission’s Telephone Consumer Protection Act and all regulations promulgated thereunder (together, the “TCPA”), and all state, federal, and foreign (a) real estate professional licensee rules of conduct, (b) Do-Not-Call (“DNC”) list prohibitions, (c) applicable licensing and bonding requirements, (d) consumer cancellation rights, (e) wireless calling restrictions, (f) restrictions on the use of automatic telephone dialing systems and pre-recorded messages, (g) opt-out rules, (h) mandatory disclosures, (i) intellectual property rights and restrictions, and (j) applicable industry regulations. All Sherpa offers are void where prohibited by law.
Skip-Traced Numbers. If you elect to use our skip-traced telephone number data, which is by its nature not guaranteed to be comprehensive or accurate, you assume all risks related to the same, including without limitation all risks related to wrong and reassigned telephone numbers and claims challenging any purported consents from target consumers. You understand that no consent can be guaranteed to be associated with any skip-traced telephone number.
Cell Phones. You understand that the TCPA prohibits certain types of telemarketing calls to cell phones and you agree not to use the Service to market or send text messages to cell phones except with proper consent or as may be otherwise allowed by law. You assume all risks if you elect to contact cell phones using the Service. You will not engage in any SMS or other text communications except as allowed by law. While Sherpa does not believe the Service constitutes an autodialer, there is some ambiguity regarding what constitutes an autodialer and lawmakers, judges, and regulators currently have somewhat differing opinions; you assume all risks related to the same.
SAN Numbers & DNC. You acknowledge that certain sellers and telemarketers may be required to purchase their own Subscription Account Number (“SAN”) to the National DNC Registry, including all area codes to which you call or transmit text messages. You agree to obtain a SAN number and all applicable area codes and to purchase and scrub against any applicable state or federal DNC list, unless exempt from such requirements. You will not from marketing to any person who has opted out of future marketing or text messages from you. You, alone, and not Sherpa, will be responsible for maintaining and enforcing an internal DNC list of consumers who have opted out of your marketing or text messages.
Data Suppression Products. If you elect to use our data suppression services, such as our litigator scrub service, you understand and acknowledge that such features are not intended to be comprehensive by nature, nor are they guaranteed to be in compliance with the law. Rather, these features are designed to help reduce (but not eliminate) risk. The known-litigator database, for example, does not contain every litigator telephone number.
Your Systems. It is your responsibility to obtain the necessary computer equipment and software to operate and use the Service and its functionality.
Data Charges. You are responsible for any telecommunications and data charges and rates incurred by using the Service.
- INHERENT LIMITATIONS ON TEXT MESSAGING: YOU ACKNOWLEDGE AND AGREE THAT THE TRANSMISSION OF TEXT MESSAGES IS SUBJECT TO THE AVAILABILITY AND PERFORMANCE OF TELECOMMUNICATIONS PROVIDERS AND NETWORKS, AS WELL AS RECIPIENTS’ DEVICES, THAT THOSE NETWORKS, PROVIDERS, AND DEVICES ARE WHOLLY OUTSIDE OF SHERPA’S CONTROL, AND THAT TEXT MESSAGE TRANSMISSION TIME MAY VARY. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE CAN ONLY BE USED TO SEND TEXT MESSAGES TO AND RECEIVE TEXT MESSAGES FROM TELECOMMUNICATIONS PROVIDERS WITH WHICH SHERPA HAS PARTNERED AND TO THE EXTENT ALLOWED BY SHERPA’S AGREEMENTS WITH THOSE PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT TELECOMMUNICATIONS PROVIDERS MAY PREVENT THEIR SUBSCRIBERS FROM RECEIVING TEXT MESSAGES AND THAT SUBSCRIBERS THEMSELVES MAY BLOCK TELEPHONE NUMBERS, IN WHICH CASE TEXT MESSAGES CANNOT BE RECEIVED BY THOSE SUBSCRIBERS, AND THAT SHERPA HAS NO RESPONSIBILITY FOR THE PRACTICES OR POLICIES OF ANY TELECOMMUNICATIONS PROVIDERS OR OTHER THIRD PARTIES.
- NO LEGAL, FINANCIAL, OR TAX ADVICE: WE DO NOT PROVIDE LEGAL, FINANCIAL, OR TAX-RELATED ADVICE OR SERVICES. NO LEGAL, FINANCIAL, OR TAX-RELATED ADVICE OR COUNSEL IS GIVEN, NOR WILL BE DEEMED TO HAVE BEEN GIVEN, BY ANY SHERPA PARTY (AS DEFINED BELOW) OR BY THE SERVICE. SHERPA DOES NOT ASSUME ANY RESPONSIBILITY FOR ENSURING THAT YOUR MARKETING OR TEXT MESSAGE CAMPAIGNS MEET APPLICABLE LEGAL REQUIREMENTS. NEITHER THE SERVICE NOR SHERPA PERFORMS ANY COST-BENEFIT ANALYSES, DRAWS LEGAL CONCLUSIONS, NOR PROVIDES LEGAL ADVICE, OPINIONS, OR RECOMMENDATIONS.
- Your Warranties: You hereby represent and warrant that:
- The Service will not be accessed or used in any manner not permitted by this Agreement;
- You are not, nor do you work for or provide services to, a competitor of Sherpa or any person or entity that develops, markets, or provides any software, products, or services that are competitive with or substantially similar to the Service or any of its features, nor do you or will you seek to engage in those activities;
- You will notify Sherpa within forty-eight (48) hours of your initial usage and operation of the Service if you have ever developed, marketed, or provided on your own behalf or any other person’s or entity’s behalf any software, products or services that compete with or are substantially similar to the Service or any of its features, or intend to do so in the future, and agree that any failure to so notify Sherpa will be treated as conclusive proof in favor of Sherpa in any potential dispute as to the source of any idea, concept or function in any copyright, trademark, patent, or other intellectual property dispute;
- You will perform your obligations and exercise your rights under this Agreement in compliance with all applicable laws and regulations, including those discussed above in this Agreement;
- All data and other information you provide in connection with your access to and use of the Service is true, accurate, and complete to the best of your knowledge and belief;
- You have all legal right to provide such data and information to us or through the Service; and
- You have the authority to enter into this Agreement and you are under no contractual obligation that will interfere with your ability to perform under this Agreement.
- Indemnification: You will indemnify, hold harmless, and defend Sherpa, its affiliates, and its and their respective directors, officers, owners, employees, agents, representatives, contractors, consultants, suppliers, licensors, successors, and assigns (together, “Sherpa Parties”) from and against any and all liabilities, losses, damages, claims, suits, demands, complaints, actions, settlements, judgments, investigations, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and court costs) that arise, directly or indirectly, out of or in connection with, or are related in any way to (a) this Agreement or your breach of this Agreement, (b) your access to or use of the Service (including your transmission and receipt of text messages and your payment of fees), (c) your misuse of or reliance on any material, data, or other information obtained from the Service, (d) your submission of information, documents, and other content (including personal information) using the Service, (e) your violation of or noncompliance with applicable laws or regulations, or (f) your negligence, willful misconduct, or fraud. We reserve, and you grant to us, the exclusive right to assume the defense and control of any matter subject to indemnification by you.
DISCLAIMER OF WARRANTIES: THE SERVICE IS PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND (EXPRESS, IMPLIED, OR OTHERWISE), INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SHERPA DOES NOT WARRANT THAT ANY DATA, INFORMATION, OR MATERIAL ON THE SERVICE IS ACCURATE OR RELIABLE. SHERPA DOES NOT WARRANT OR GUARANTEE THE QUALITY, COMPLETENESS, TIMELINESS, OR AVAILABILITY OF THE SERVICE. SHERPA DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS. SHERPA IS NOT RESPONSIBLE FOR ANY TYPOGRAPHICAL ERRORS ON THE SERVICE. SHERPA HAS NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHERPA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION THOSE REGARDING AVAILABILITY, QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR ANY USE OR PURPOSE, COMPATIBILITY WITH ANY STANDARDS OR USER REQUIREMENTS, TITLE, AND NONINFRINGEMENT, AS WELL AS ANY ARISING BY OPERATION OF LAW OR FROM A COURSE OF DEALING OR USAGE IN TRADE.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF TELECOMMUNICATIONS, THE INTERNET, WIRELESS NETWORKS, AND ELECTRONIC COMMUNICATIONS. SHERPA IS NOT RESPONSIBLE FOR ANY DELAYS, INACCURACIES, DELIVERY FAILURES, OR OTHER FAILURES OR DAMAGE RESULTING FROM THOSE PROBLEMS OR ANY OTHER PROBLEMS OUTSIDE OF SHERPA’S REASONABLE AND DIRECT CONTROL, INCLUDING WITHOUT LIMITATION TELECOMMUNICATIONS SERVICES, THE INTERNET, YOUR WIRELESS NETWORKS, AND ANY THIRD-PARTY COMPONENTS OR SOFTWARE.
YOU ARE NOT PURCHASING A “FRANCHISE,” “BUSINESS OPPORTUNITY,” “STRATEGIC MARKETING PLAN,” “TARGETED MARKETING PLAN,” OR “EXCLUSIVE TERRITORY” FROM SHERPA. YOU UNDERSTAND THAT THE SERVICE MAY INVOLVE COMPLEX PROCESSES AND TECHNOLOGY AND THAT IT MAY TAKE TIME, EFFORT, AND SKILL TO UNDERSTAND AND OPERATE THE SERVICE. WE RECOMMEND THAT YOU ALLOW AMPLE TIME TO ACCESS, SET UP, TEST, AND UNDERSTAND THE SERVICE BEFORE YOU USE THE SERVICE FOR YOUR MARKETING CAMPAIGNS. SHERPA DOES NOT MAKE ANY CLAIMS OR GUARANTEES THAT YOU WILL BRING IN ANY REVENUE NOR OPERATE ANY PROFITABLE SERVICES OR BUSINESSES BY USING THE SERVICE.
WE MAKE NO REPRESENTATION THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OTHER THAN THE UNITED STATES. IF YOU CHOOSE TO ACCESS OR USE THE SERVICE FROM LOCATIONS OTHER THAN THE UNITED STATES, YOU DO SO AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH APPLICABLE LAWS AND REGULATIONS.
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND YOU, ALONE, ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, SOFTWARE, SYSTEMS, AND NETWORKS, ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY INFORMATION FROM THE SERVICE, AND ANY OTHER DAMAGE OR LOSS THAT MAY BE INCURRED.
NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM SHERPA OR IN ANY MANNER FROM THE SERVICE CREATES ANY WARRANTY.
- LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE SHERPA PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE ITEMS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE (INCLUDING WITHOUT LIMITATION THE INPUT OF PERSONAL INFORMATION USING THE SERVICE, ANY RELIANCE ON INFORMATION DISPLAYED ON THE SERVICE, AND ANY USE OF THIRD-PARTY COMPONENTS), WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF A SHERPA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
WITHOUT LIMITING THE FOREGOING, THE SHERPA PARTIES’ MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, ARISING OUT OF ANY CLAIM WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WILL IN NO EVENT EXCEED THE AMOUNT EQUAL TO THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO SHERPA IN THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Noncircumvention: During the term of this Agreement and for a period of one year after termination, you will not, in any manner, directly or indirectly, circumvent or attempt to circumvent this Agreement, including without limitation by forming, joining, or in any way participating in any corporation, partnership, limited partnership, limited liability company, syndicate, or other firm, entity, or group (or otherwise act in concert with any person, firm, entity, or group) for the purpose of taking any action that is in circumvention of this Agreement or is restricted or prohibited under this Agreement.
- Nonsolicitation: While this Agreement is in effect and for a period of one year after termination, you will not solicit for employment, hire, or seek or engage the services of any then-current or former employee or contractor of Sherpa.
- Service Availability and Modifications: Any features, materials, products, or services made available through the Service are subject to availability. Sherpa may change the Service and the features, materials, products, and services made available through the Service at any time without notice or liability.
- Choice of Law and Venue: This Agreement is governed by and will be construed according to the laws of the State of Delaware without giving effect to its conflict-of-law principles and, as applicable, the federal laws of the United States. The United Nations Convention for the International Sale of Goods does not apply. The state and federal courts (as applicable) located in Delaware or Colorado shall, at Sherpa’s option, have exclusive jurisdiction and venue over any non-arbitral dispute initiated by Sherpa under Section 20. The parties consent to such exclusive jurisdiction.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury: Please read the following paragraphs carefully because they require you to arbitrate disputes with Sherpa and limit the manner in which you can seek relief from us.
Applicability. Any dispute, claim, or controversy arising out of or relating to the Service or this Agreement, including without limitation the breach, termination, enforcement, interpretation, or validity of this Agreement (together, “Disputes”), will be resolved by binding arbitration on an individual basis as described in this section (this “Arbitration Agreement”). However, notwithstanding the foregoing, in the event of any actual, alleged, or threatened violation of confidentiality or violation of Sherpa’s intellectual property or other proprietary rights, Sherpa may immediately resort to court proceedings in a court of competent jurisdiction, including to seek temporary, interim, or preliminary injunctive relief and to do so without posting bond, proving damages, or meeting any similar requirement. Sherpa will be entitled to recover its reasonable attorneys’ fees and court costs from you in the event it is the prevailing party in any such court proceedings against you. No institution of any action for temporary, interim, or preliminary injunctive relief will constitute a waiver of the right or obligation of either party to submit any claim seeking relief other than temporary, interim, or preliminary injunctive relief to arbitration. This Arbitration Agreement applies to you, all Sherpa Parties, their respective predecessors in interest, successors in interest, and assigns, and all authorized and unauthorized users of the Service.
Arbitrator. Arbitration proceedings will be administered by the American Arbitration Association (“AAA”) before a three-arbitrator panel. Each party will appoint one arbitrator and those two arbitrators will, together, agree upon a third arbitrator. The decision of the panel will be final and binding. Any final award or judgment may be filed, confirmed, and enforced in any court of competent jurisdiction. Sherpa will be entitled to recover its reasonable attorneys’ fees and all costs of the arbitration from you in the event it is the prevailing party in any such arbitration proceedings against you. Otherwise, the parties shall each bear their own attorneys’ fees and equally split all costs of the arbitration. Any arbitration proceeding cannot be consolidated or joined with any other proceeding and will not proceed as a class action. The parties understand that they would have had a right or opportunity to litigate Disputes through a court, to have a judge or jury decide their case, and to participate in a class action or other proceeding involving multiple claimants, but they have instead chosen to have all Disputes decided through individual arbitration.
Place; Federal Arbitration Act. The place of arbitration will be Denver, Colorado, unless otherwise agreed to in writing by all parties to the arbitration. This Arbitration Agreement evidences a transaction involving interstate commerce and the Federal Arbitration Act, 9 U.S.C. Sections 1-16, will govern the interpretation, enforcement, and proceedings pursuant to this Arbitration Agreement.
Confidentiality. Any and all actions taken under this Arbitration Agreement, including all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and must not be disclosed to any third party.
- Force Majeure: Sherpa will not be liable to you or to any third party for any delay or other failure to perform under this Agreement that is due to causes beyond Sherpa’s control, including without limitation acts of God, terrorism, civil disorders, labor controversy, riot, acts of a public enemy, acts of the United States of America or any state, territory or political division thereof, other acts of any government, fires, floods, earthquakes, blizzards, other extraordinary elements of nature, telecommunications failures, Internet failures, and similar causes and events.
- Feedback: Sherpa welcomes comments regarding the Service. If you submit comments or feedback to us regarding the Service, they will not be considered or treated as confidential. We may use any comments and feedback that you send us in our discretion and without attribution or compensation to you.
- Confidentiality: You will not use any Sherpa Confidential Information for any purpose except as reasonably necessary to access or use the Service as expressly permitted by this Agreement, where “Sherpa Confidential Information” means all information disclosed in connection with the Service or this Agreement by or on behalf of a Sherpa Party to you or otherwise obtained by you, whether or not identified as “confidential,” that Sherpa considers or protects as confidential or that should reasonably be understood to be confidential given the content of the information and the circumstances of disclosure, including without limitation all practices, strategies, tactics, business plans, technical specifications, and trade secrets related to the Service or any other product or service developed, marketed, or provided by a Sherpa Party. You will not disclose any Sherpa Confidential Information to any third party. You will use the same measures to protect Sherpa Confidential Information from unauthorized use and disclosure as you use to protect your own most confidential information, but in no event less than a reasonable degree of care. Sherpa Confidential Information may be in any form and includes all copies of Sherpa Confidential Information. Sherpa Confidential Information is solely the property of Sherpa.
- Relationship of the Parties: Sherpa is an independent contractor. This Agreement does not create any agency, partnership, joint venture relationship, other form of joint enterprise, employment, or fiduciary relationship between the parties, their affiliates, or their respective employees, contractors, or agents. Neither party has any authority to contract for or bind the other party in any manner or make any representation or commitment on behalf of the other party.
- Audit. Sherpa and its designated representatives may, at their expense, audit, examine, and make copies of data, documents, information, and other records in your possession or control that relate to or concern the Service in order to determine your compliance with this Agreement.
- Notices: Except as may be otherwise specified in this Agreement, all notices, consents, and other communications permitted or required to be given under this Agreement must be in writing and addressed to the recipient and will be deemed given: upon delivery if personally delivered with fees prepaid, including by a recognized courier service; upon receipt if delivered by certified or registered mail, postage prepaid and return receipt requested, as indicated by the date on the signed receipt; or, where you are the recipient, upon delivery by email to the email address for you or your organization on file with Sherpa. Where Sherpa is the recipient, a copy of each communication must be sent to firstname.lastname@example.org in order to be valid. Please print or otherwise save a copy of this Agreement and all notices, consents, and other communications for your reference.
- Assignment: We may assign our rights and delegate our duties under this Agreement at any time to any party without notice to you. You will not assign this Agreement or your rights or obligations under this Agreement without our prior written consent. Any attempted assignment by you will be void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties’ respective successors and assigns.
- Interpretation: If any term of this Agreement is held to be invalid or unenforceable in any jurisdiction, that term will be severed from the remaining terms to the extent of the invalidity or unenforceability, without invalidating any other term of this Agreement, which will remain in full force and effect. The headings in this Agreement are for convenience only and will not affect the construction or interpretation of this Agreement.
- No Third-Party Beneficiaries: This Agreement does not confer any rights, remedies, or benefits upon any person or entity other than you and Sherpa.
- Survival: Any provisions of this Agreement that by their nature or content are intended to or would be reasonably understood to apply after termination of this Agreement or of your access to or use of the Service, including all provisions regarding intellectual property, use restrictions, confidentiality, indemnification, limitation of our liability, or dispute resolution, will survive any termination of this Agreement.
- Contact Us: If you have any questions or comments regarding this Agreement or the Service, please contact us by email at email@example.com.