Effective Date: January 29, 2015
Note for Children. Use of the Services by anyone under the age of 13 is prohibited.
2.License to Use the Services. Subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to install and use the Services on a compatible mobile device for your personal purposes, in each case in the manner enabled by the Company. Any use of the Services other than for private use is strictly prohibited.
3.Ownership; Proprietary Rights. As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your Media, subject to the licenses granted to the Company and other Services users herein. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Services, the software and technology used by the Company to provide Services features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials.
4.Mobile Services. Use of the Services requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Services.
6.1 The Services allows you and other users to upload and share Media through chat rooms on the Services. You acknowledge that all Media is stored on and made available through the Services by the Company’s servers and not on your device. However, as is the case with similar social and media sharing services, your Media is not completely secure and you acknowledge that it may be accessed by third parties. If you delete the Services from your device, your Media will not remain viewable to other users through the Services. If you create a Services account, your log-in will remain active. If you wish to terminate your Services account such that all of your Media is deleted from our servers, please follow the instructions set forth in Section 8 below.
6.2 You understand that all Media is provided to you through the Services only on an “as-available” basis and the Company does not guarantee that the availability of Media will be uninterrupted or bug free. If you post Media that is not owned by you, it may be deleted at any time by the Company. You agree you are responsible for all of your Media and all activities that occur under your user account.
6.3 You shall retain all of your ownership rights in your Media. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit and prepare derivative works of your Media, and to additionally distribute and publicly perform Media in connection with the Services and the Company’s (and its successor’s) business, in any media formats and through any media channels. The Company agrees not to display your Media in any advertising materials without your consent, other the display of Media on web sites owned or controlled by the Company (such as https://www.sherpashare.com). You also hereby grant to each user of the Services a non-exclusive license to access and view your Media as permitted by the functionality of the Services and this Agreement. The aforementioned licenses will terminate with respect to any particular item of your Media when you or the Company remove it from the Services, provided that (i) any sublicenses may be perpetual and irrevocable and (ii) you acknowledge that, except as provided under Section 8, such licenses survive to the extent necessary for a copy of your Media to be retained by the Company.
6.4 In connection with your Media, you further agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any Media does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time.
6.5 You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Services, and further acknowledge that the Company does not control the Media posted by Services users and does not have any obligation to monitor such content for any purpose.
7. Prohibited Uses. As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. You may not use the Services in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party).
8.1 Generally. Sections 3-4, 6.3, and 8-16 will survive any termination of this Agreement.
8.2 Termination by User. You may terminate this Agreement at any time, for any reason or for no reason, by deleting the App from your device and notifying us via e-mail at firstname.lastname@example.org that you are terminating your App or Services account. In such notice, you may also request that we delete from our servers all of the Media you have posted through the Services. Such requests will be honored within a reasonable time period after they have been received provided that you give us all reasonably necessary information and cooperation. Certain data may continue to be stored in our backup systems until regularly scheduled deletions occur.
8.3 Termination by Company. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Services. The Company may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice or permanently. Without limiting the generality of the foregoing, you acknowledge that your use of the Services may be suspended or terminated by Company if you are the subject of negative feedback from other Services users through the flagging functionality of the Services. You agree that any termination of your use of the Services or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third-party for any such termination.
9. Apple. You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
10.Disclaimers; No Warranties. THE SERVICES AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SHERPASHARE INC., AND ITS LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. SHERPASHARE INC. AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. THE COMPANY SHALL HAVE NO LIABILITY ARISING OUT OF THE INABILITY OF COMPANY TO ACCESS ANY PLATFORM ON YOUR BEHALF. THE SERVICES MAY INCLUDE ADVERTISEMENTS OR OTHER LINKS THAT ALLOW YOU TO ACCESS WEB SITES OR OTHER ONLINE SERVICES THAT ARE OWNED AND OPERATED BY THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT OF SUCH THIRD PARTY SITES AND SERVICES, PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THEM, OR YOUR USE OF OR INTERACTION WITH THEM.
11. Indemnification; Hold Harmless. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Services, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
12. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL SHERPASHARE INC. OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM THE SERVICES, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH SHERPASHARE INC., EVEN IF SHERPASHARE INC. OR A SHERPASHARE INC. AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, SHERPASHARE INC.’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL SHERPASHARE INC. OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED FIFTY U.S. DOLLARS.
13.Arbitration. Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (the “AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
14.Class Action Waiver. You agree that anY CLAIMS subject to arbitration under section 13 MUST BE MADE IN YOUR INdividual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
15.Claims. YOU AND SHERPASHARE INC. AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.Miscellaneous. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Services user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Services that is not subject to arbitration under Section 13 shall be filed only in the state or federal courts in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.