SHERPA TECHNOLOGIES, LLC – TERMS AND CONDITIONS OF USE
(TCU – 06/01/2009)
READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE SHERPA TECHNOLOGIES, LLC WEBSITE.
This website, www.hyperspots.com (referred to herein as “Website”), is owned and operated by Sherpa Technologies, LLC, a California limited liability company, with its principal place of business at 620 Venice Boulevard, Venice, California 90291 (referred to herein as “Sherpa”). By clicking “I Agree to the Terms and Conditions” check box and button, you signify you have read, understood and agree to these terms and conditions of use, which constitute a binding legal agreement between you and Sherpa. If you do not agree to these terms and conditions of use, click “CANCEL” and DO NOT upload your media and/or DO NOT register as a user. For convenience, the terms and conditions of use and this Agreement will hereinafter be referred to as the “Terms.” Sherpa reserves the right to change, modify, add or remove portions of the Terms at anytime. Sherpa will make a copy of these changes available on the Website and will notify you about any changes. You understand and agree that if you use the Website and the Services as hereinafter defined after the date on which the changes have been made, Sherpa will treat your use as acceptance of the changed, modified, added to or removed portions of the Terms including without limitation changes in Sherpa’s charges and fees for the use of the Website and Services. If you at anytime object to a change in the Terms, you should immediately discontinue the use of the Website and the Services. NOTE THAT THE TERMS CONTAIN WARRANTY DISCLAIMERS AND LIMITATIONS OF SHERPA’S LIABILITY FOR DAMAGES SUFFERED BY YOU IN USING THE WEBSITE AND RESTRICTIONS ON WHERE YOU MAY SUE SHERPA. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE WEBSITE.
In order to use the Website, content, software, technology and services offered on the Website, including the CLICK Player, Hyperspots window and end user “click savings” (referred to herein collectively as the “Services”), you must submit an email address to Sherpa and obtain a username and password (referred to herein as “Login Credentials”). You are solely responsible in all respects for all use of and for protecting the confidentiality of your Login Credentials. You agree to notify Sherpa immediately of any unauthorized use of your Login Credentials or any other suspected unauthorized use of the Website or Services. Sherpa shall not be responsible or liable to you or any third party for any loss or damage arising from the unauthorized use of your Login Credentials. You acknowledge and agree that the Services which Sherpa provides may change from time to time without prior notice to you. You further acknowledge and agree that Sherpa may stop providing the Services, or any of them, to you without prior notice to you. Nothing herein compels you to use these Services and you may stop such use at any time. You acknowledge and agree that Sherpa may at any time in its discretion cancel your registration and in the event of such cancellation, you may be precluded from accessing the Website, the Services, the “Content” as hereinafter defined, and any other information relating to the Services or your account. “Click savings” as used herein means any action taken by a registered end user to save, use or otherwise interact with “Linked Information” as defined below.
- Use of the Website
The Website may be used for the purposes allowed by the site, which include (i) the submission and uploading of media such as videos and/or content (referred to herein as “Content”) to the Website for the purpose of creating clickable interactive Content using the Services and such other purposes as may be allowed from time to time and (ii) allowing end users to register and save “clicks” and otherwise engage in the virtual interaction permitted by the Website and Services. All Content uploaded to the Website and all defined areas created over the Content (referred to herein as “Defined Areas”) and all information added to the Defined Areas (referred to herein as “Linked Information”) collectively referred to as “Hyperspots Content,” and all requested end user click data (collectively referred to herein as “Viewer Data”) once created by you shall be owned and controlled by Sherpa and may be used by Sherpa as it deems appropriate in Sherpa’s sole and absolute discretion, which uses may include the sale of such Viewer Data to third parties. Subject to the other provisions of the Terms, you may use the Website and Services to create Defined Areas over Content that third parties may virtually post to other third party sites (referred to herein as the “Other Sites”). Such Other Sites are not reviewed by Sherpa, and Sherpa is not responsible for Other Sites subject matter. Content posted to any Other Site does not imply approval or endorsement thereof by Sherpa. While you may modify, publish, display and share the Hyperspots Content with third parties, no Viewer Data may be used, published, displayed or shared in any form or by any means, in whole or in part, without Sherpa’s prior written permission. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Website or Services (referred to herein as “Submissions”), provided by you to Sherpa are non-confidential and shall be the sole property of Sherpa and Sherpa shall own all rights, including all intellectual property rights, in the foregoing and shall be entitled to the unrestricted use of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Uses Not Permitted
Although you may enter into such agreements as you desire with third party owners of Content and Linked Information, you may not otherwise reproduce, duplicate, copy, sell, trade or resell the Services or otherwise dispose of the Services for any purpose. You shall be solely responsible for any breach of any obligation or promise on your part to a third party which in any way relate to the Content, Website and/or Services and you shall indemnify the Indemnified Parties (as hereinafter defined) for any such liability in accord with the provisions of Section 8 hereof. Unless you have entered into a separate agreement with Sherpa, you have no right to make use of Sherpa’s trademarks, tradenames, service marks, logos or other distinctive brand features and you have no right to hold yourself out as Sherpa’s agent, partner, distributor or other associate or affiliate. You are responsible for obtaining access to the Website and the Services. Such access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Website and the Services. Your use of the Website and Services are subject to all applicable local, state, national and international laws and regulations (collectively referred to herein as “Laws”). You shall not use the Website or the Services for any unlawful purpose or in any fashion which violates any Laws. You shall not engage in any activity which adversely affects or impairs the Website or the Services. You shall be solely responsible for compliance with any Laws and your agreements, if any, with third parties governing or related to the Content, the Hyperspotted Content and Linked Information, including without limitation, the procurement and renewal of any required export or import license required under U.S. or any foreign law. You acknowledge that Sherpa owns all right, title and interest in and to the Website and the Services including copyrights, patents, trade secrets, tradenames, trademarks, and all other intellectual property right relating to the Website and the Services (collectively referred to herein as “Property Rights”). You further acknowledge that the Property Rights contain information which is or may be designated or identified as confidential by Sherpa and you shall not disclose such information without Sherpa’s prior written consent. You shall not use any robot spider or other automatic device or manual process to monitor or copy the Website or Services. You agree to use reasonable means to protect the Property Rights and not to misappropriate or use the Property Rights in any fashion including without limitation reverse engineering of any of the Sherpa software relating to the Website or Services.
- Termination and Discontinuation
You may terminate your account for any reason by emailing email@example.com (subject line: “Account Termination Request”). Please identify your account and provide a valid reply email address in the event we require additional information to terminate your account. Sherpa may at any time stop providing the Website and/or Services to you if Sherpa determines you have breached the Terms or if your use of the Website and/or Services is in violation of any Laws, third party property rights or your agreement with third parties. Sherpa reserves the right to modify or terminate the Website and/or Services with or without cause and/or notice at any time. The termination of your account, the cessation of the Website and/or Services, the termination of the Website or the termination of Services shall not: (i) relieve you of your obligations and liabilities under the Terms and (ii) impose any obligations or liabilities on Sherpa. Sherpa shall not be liable to you or any third party for any damage caused by or otherwise related to a cessation or termination of the Website and/or Services.
- No Warranty
THE WEBSITE AND/OR SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SHERPA DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. WE DO NOT WARRANT THAT THE WEBSITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR ACCESS OR OPERATION OF THE WEBSITE AND/OR SERVICES OR ANY CONTENT ACCESSIBLE THROUGH THE WEBSITE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SHERPA WEBSITE OR THE OTHER SITES OF SHERPA TECHNOLOGIES LLC (OR ANY SERVERS THAT MAKE SUCH MATERIALS AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE AND/OR SERVICES IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, OR THAT THE USE OF THE WEBSITE AND/OR SERVICES WILL NOT ADVERSELY AFFECT YOUR OR ANY OTHER PERSON’S USE OF THE COMPUTER(S) ON WHICH THE WEBSITE AND/OR SERVICES IS ACCESSED FROM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHERPA OR SHERPA OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OF ANY KIND. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
You hereby agree to indemnify, defend, and hold Sherpa and its officers, directors, owners, members, agents, information providers, licensors, and licensees, jointly and severally (collectively, referred to herein as the “Indemnified Parties”), harmless from and against any and all liabilities and costs (including reasonable attorney’s fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this agreement and/or your use of the Website and/or Services. You shall cooperate with us in the defense of any claim. We reserve the right to assume the exclusive defense and legal control of any matter subject to indemnification by you.
- Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, SHERPA SHALL NOT BE LIABLE TO YOU FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; COMMITMENTS IN CONNECTION WITH ANY BUSINESS; LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE WEBSITE AND/OR SERVICES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SHERPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SHERPA’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION AND LOSSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATIONS, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID TO SHERPA BY YOU FOR THE USE OF THE WEBSITE AND/OR SERVICES DURING THE ONE YEAR PERIOD PRIOR TO THE OCCURRENCE OF YOUR CLAIM OR $500.00 WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SHERPA’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
10. Copyright and Trade Mark Policies
It is Sherpa’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. Contact the legal department should you have any complaints at firstname.lastname@example.org (subject line: “Infringement”).
Some of the Website and Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the databases and servers, queries made through the Website and Services or other information. The manner, mode and extent of advertising by Sherpa on the Website and Services are subject to change without specific notice to you. In consideration for Sherpa granting you access to and use of the Website and Services, you agree that Sherpa may place such advertising on the Website and Services.
12. Other Content
The Website and/or Services may include hyperlinks to other sites or content or resources. Sherpa may have no control over any web sites or resources which are provided by companies or persons other than Sherpa. You acknowledge and agree that Sherpa is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources. You acknowledge and agree that Sherpa is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
13. Miscellaneous Provisions
The Terms constitute the whole legal agreement between you and Sherpa and govern your use of the Website and/or Services (but excluding any services which Sherpa may provide to you under a separate written agreement), and completely replace any prior agreements between you and Sherpa in relation to the Website and/or Services. You agree that Sherpa will provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Website and/or Services. You agree that if Sherpa does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Sherpa has the benefit of under any applicable law), this will not be taken to be a formal waiver of Sherpa’s rights and that those rights or remedies will still be available to Sherpa. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable. You acknowledge and agree that each member of the group of companies of which Sherpa is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third-party beneficiaries to the Terms. The Terms, and your relationship with Sherpa under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Sherpa agree to submit to the exclusive jurisdiction of the courts located within the County of Los Angeles, State of California, U.S.A., to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Sherpa shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND FURTHER AGREE THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT PROPOSALS, UNDERSTANDINGS AND ALL OTHER AGREEMENTS, ORAL OR WRITTEN, BETWEEN SHERPA AND YOU RELATING TO THIS AGREEMENT AND THE TERMS. THIS AGREEMENT SUPERSEDES ALL OTHER AGREEMENTS BETWEEN THE PARTIES. NO CHANGE OR MODIFICATION OF THIS AGREEMENT WILL BE VALID UNLESS IT IS IN WRITING AND IS PUBLISHED AND/OR SIGNED BY SHERPA.
LAST UPDATED 8/4/2009.