TERMS AND CONDITIONS

SCOPE OF AGREEMENT

Sherpa Web Studios, Inc. (“SHERPA”) shall provide Customer with the services detailed in the final Proposal, Estimate, or Statement of Work (“Proposals”), as agreed upon between SHERPA and Customer (collective “Parties”) pursuant to the terms of this SHERPA Terms of Service Agreement (“Agreement”) and terms and conditions of the Proposals.

ENTIRE AGREEMENT

This Agreement and the Proposals are the entire agreement between the Parties. It supersedes all prior agreements between the parties and sets forth all the covenants, promises, agreements, conditions, and understandings between the Parties. No alteration, amendment, change, or addition shall be binding on Parties unless reduced to writing and signed by each party.

EFFECTIVE DATE

This Agreement becomes effective upon the date it is accepted by the Customer to SHERPA.

ACCEPTANCE

In addition to acceptance by signing the Proposals, Customer accepts this Agreement by accessing any services, accepting any services, transmission of an online order form, or payment of an invoice for any services. Customer may not access, use, or accept services unless they have accepted this Agreement.

CONTRACT TERM AND AUTOMATIC RENEWAL

This Agreement shall be binding on Parties for one year from the effective date of this Agreement. For the purposes of this Agreement, the effective date, month and day shall be the anniversary date (“Anniversary Date”) for all subsequent years. In the event the Anniversary Date falls on a day that does not exist in that calendar year, the next calendar day in that year shall be the Anniversary Date. This Agreement shall automatically renew, for an additional one year term, on each subsequent Anniversary Date until the contract is terminated.

SOFTWARE

SHERPA grants Customer a non-exclusive, nontransferable worldwide right to use the Web Hosting Infrastructure (“Hosting”) or NPressive CRM for WordPress (“NPressive”) software during the term of this Agreement, solely for Customer’s own internal business purposes, pursuant to the terms of this Agreement. The software is licensed, not sold; and all rights not expressly granted to Customer are reserved by SHERPA. SHERPA may update its software from time to time. Customer agrees to accept any updates pursuant to these terms unless new terms are included with the update, in which case; those terms shall apply. It is expressly prohibited for Customer to:

(a) License, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party Hosting or the NPressive software except as specifically provided for in paragraph 10;

(b) Reverse engineer Hosting or the NPressive software or access Hosting or the NPressive software to build a competitive product or provide a competitive service;

(c) Modify or make derivative works based upon Hosting or the NPressive software or copy any ideas, features, functions or graphics; or

(d) Commercially exploit Hosting or the NPressive software or SHERPA owned Content in any way.

CUSTOMER DATA

Customer agrees to provide SHERPA all information and data necessary to complete the services outlined in the Proposals. Data submitted by the Customer (“Customer Data”) for use on Hosting or the NPressive software, or in conjunction with services, whether supplied by the Customer or by third parties, shall remain the sole property of the Customer or such third parties, as applicable, unless expressly stated.

Customer grants to SHERPA the non-exclusive, worldwide, right to use, copy, store, transmit and display Customer Data to the extent necessary to provide services pursuant to the Proposals. SHERPA will not sell, license, share, transfer or otherwise disclose Customer Data, specifically including but not limited to constituent lists or list administer login information, to any third party except when expressly directed by Customer or when required by law. SHERPA may disclose Customer Data to its employees and agents and access Customer Data in order to provide technical support to Customer.

SHERPA shall backup Customer Data on a daily basis. The backup copy of Customer Data shall be made available to Customer upon twenty-four hour notice excluding weekends and federal holidays. Additionally, Customer may request delivery of a physical backup of Customer Data at any time for a nominal fee.

SHERPA shall exercise reasonable commercial efforts to make Hosting and the NPressive software secure. Customer, however, is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. SHERPA shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. It is Customer’s sole responsibility to request a backup copy of Customer Data to avoid any economic loss associated with Customer Data. Upon termination of this Agreement, except by Customer breach, SHERPA shall make Customer Data available for copying for thirty calendar days after the termination date. SHERPA reserves the right to delete Customer Data thirty-one calendar days after termination of this Agreement without further notice.

NO WARRANTY

Although SHERPA will take all reasonable steps to provide error-free and continuous service, SHERPA does not represent, warrant, or guarantee that the database service will be uninterrupted or error-free. As a result, the database service is provided “as is” without warranty of any kind. SHERPA disclaims all warranties, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and infringement.

USE OF SERVICES

Customer may use Hosting and the NPressive software for any legitimate business purpose relating to the services detailed in the Proposals including but not limited to display and transmission of customer and SHERPA generated information, communications, software, photos, video, graphics, music, sounds, or other material (collectively “Content”) pursuant to the terms of this Agreement. Customer may charge its users under separate agreements for use of Hosting or the NPressive software and for Content used on Hosting or the NPressive software.

INDEPENDENT CONTENT PROVIDER

Under this Agreement, SHERPA is an independent content provider (“ICP”). As an ICP, Customer is responsible and liable for any and all activities conducted through its account on Hosting or NPressive by Customer and Customer’s users regardless of whether or not Customer has authorized any such uses.

CONTENT AND INTELLECTUAL PROPERTY RIGHTS

Customer acknowledges that Content, whether provided by Customer, SHERPA, or third parties, may include material which is the subject of and protected by copyrights, trademarks, service marks, and other proprietary rights (“Rights”). Customer acknowledges that such Rights are valid and valuable and are protected and apply to all media that now exists or may exist in the future. Customer’s ability to use any Content, which is protected by such Rights, shall be governed by applicable law including relevant patent and trademark law and the terms of this Agreement.

Customer acknowledges that its use of Hosting or NPressive allows access to Content originating from other customers, ICP’s, and third parties located in countries other than the United States. Customer agrees that its access to and use of such Content may be governed by additional terms, operating policies, and international laws.

Customer warrants that Customer and Customer’s users shall:

(a) Only transmit on Hosting or NPressive Content that is not subject to any Rights in favor of any other party unless the holder of any such Rights has given expressed written consent to transmit said Content on Hosting or the NPressive software and

(b) That by transmitting or allowing the transmission of any Content on Hosting or NPressive, Customer and Customer’s users automatically warrant that SHERPA has the royalty-free, irrevocable, non-exclusive worldwide right to transmit and display such Content in whole or in part on Hosting or NPressive.

LIMITED LIABILITY AND CLASS ACTION WAIVER

The provisions of paragraph 13 shall apply to any action at law, in equity, or arbitration:

(a) SHERPA’s  total liability, if any, with respect to the subject matter of this Agreement (including but not limited to liability arising out of contract, tort, strict liability, breach of warranty, or otherwise), is limited to charges collected by SHERPA under this Agreement in the twelve month period immediately preceding to the initial act, injury, or occurrence that gave rise to the liability;

(b) SHERPA shall not be liable for any loss of profits or revenue, special, punitive, incidental, or consequential damages in any action arising out of the subject matter of this Agreement, specifically including but not limited to loss or corruption of Customer Data, whether or not foreseeable and even if SHERPA has been advised or had previous knowledge of the possibility of such damages;

(c) SHERPA shall not be liable for failure to perform due to acts of God, the public enemy, any government or agency thereof, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargos, severe weather, differences with workmen, restrictions imposed by governmental agencies, war, hostilities, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation, the inability of any entity to connect to the Internet, or any other reason beyond the control of SHERPA; and

(d) Any proceeding to resolve or litigate any dispute in any forum relating to this Agreement shall be conducted solely on an individual basis. Neither Party shall have any dispute heard as a class action or in any other proceeding in which either Party acts or proposes to act in a representative capacity.

The provisions of this paragraph shall apply to any claims brought against Customer by a third party for damages based on an improper license grant of Hosting or the NPressive software to Customer.

INDEMNIFICATION BY SHERPA

SHERPA will defend and indemnify Customer and hold Customer harmless from all liabilities, claims, and expenses (including attorney’s fees) (collectively “Damages”), arising from a third party claim for Damages resulting from breach of this Agreement by SHERPA, negligence, or malicious misconduct by SHERPA or its employees in connection with the performance of services under this Agreement.

INDEMNIFICATION BY CUSTOMER

Customer will defend and indemnify SHERPA and hold SHERPA harmless from all Damages arising from a third party claim for Damages resulting from breach of this Agreement by Customer, the transmission by Customer or Customer’s users of any Content on Hosting or the NPressive software (whether or not such use was authorized by Customer), negligence, malicious misconduct by Customer, its employees, or agents or any action arising out Customer Conduct in violation of the Rules.

INDEMNIFICATION COOPERATION, CONTROL OF DEFENSE, AND LIMITATION

In any case where a Party is required to provide indemnification pursuant to this Agreement, the indemnified party, at the indemnifying party’s expense will cooperate with the indemnifying party in the defense of any matters which are the subject of the indemnification; however, the indemnified party reserves the right to approve any settlement agreement in connection with any such matter that is not fully covered by applicable insurance. The indemnified party also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party; but in that event the indemnifying party shall have no further obligation to indemnify with respect to that matter.

CHARGES

Customer agrees to pay for use of Hosting or the NPressive software and for all additional services agreed upon in accordance with the prices set forth in the Proposals. All payments, including for recurring, hourly, projects, and materials, are due prior to service. SHERPA shall perform those services within ninety days of payment unless otherwise agreed upon between the Parties. Charges are non-refundable absent breach of this Agreement by SHERPA. All prices, statements, invoices, and charges are in United States Dollars (USD).

ESCALATION OF PRICES

All prices in the Proposals may increase by 5% on the first day of each January after acceptance of this Agreement. In the event of waiver of escalation of charges in any year(s), SHERPA reserves the right to escalate the charges in any subsequent year to reflect the rate that should be charged pursuant to this paragraph had the rate increased each year.

TERMINATION OF THIS AGREEMENT

This Agreement may be terminated:

(a) By either Party upon sixty calendar days’ notice preceding any Anniversary Date;

(b) By a signed agreement between the Parties;

(c) By Customer upon sixty calendar days’ notice after the first year’s Contract Term;

(d) By Customer upon notice of any breach of this Agreement by SHERPA. In the event of breach by SHERPA, Customer Data shall be made available to Customer for copying within seven calendar days of the termination notice and SHERPA shall make Customer Data available for copying by Customer for a minimum of twenty-three calendar days following the notice of breach.

(e) By SHERPA upon notice of any breach of this Agreement by Customer. Customer shall be responsible for and shall pay to SHERPA all amounts due and owing under this Agreement as of the termination date. In the event of breach by Customer, SHERPA may:

(i) Suspend Customer’s use and access to Hosting or the NPressive software and Customer Data;

(ii) Suspend any other person’s use and access, including but not limited to any person using Hosting or the NPressive software through Customer’s account with or without Customer’s authority, to Hosting or the NPressive software and Customer Data;

(iii) Prevent the copying and export of Customer Data; and

(iv) Delete Customer Data stored in Hosting or the NPressive software if Customer fails to cure the breach within thirty calendar days.

NOTICES

Notices required by this Agreement shall be sent by email. Notices to SHERPA shall be sent to results@sherpaglobal.com. Notices to Customer shall be sent to the email address(es) listed on the Proposals. Either Party may update the email address for notification purposes at any time pursuant to the notice requirements of this paragraph. A sent confirmation is prima facie evidence that the notice was sent and all sent emails are deemed received twenty-four hours after the timestamp on the sent email.

CHOICE OF LAW

The laws of the State of Illinois shall govern this Agreement. Parties submit to the exclusive jurisdiction of Georgia courts to enforce this Agreement or any action relating to this Agreement. This agreement shall bind and be for the benefit of the Parties and their respective successors and assigns.

SEVERABILITY

If any provision of the Agreement is held invalid, the remainder of this Agreement shall not be affected.

WAIVER

The failure to insist upon strict enforcement of any of the provisions of this Agreement or instrument delivered pursuant hereto shall not be deemed to be a waiver of any such provision unless agreed upon in writing.

INDEPENDENT COUNSEL

Customer has been given the opportunity to consult with independent counsel and negotiate the terms of this Agreement prior to the effective date of this Agreement.

CONSTRUCTION

The paragraph headings are made part of this Agreement and are intended to aid in the interpretation of this Agreement, but in no way shall limit the content of the paragraphs.  In the event of any ambiguity between this Agreement and the Proposals: this Agreement shall supersede the Proposals.

Last updated: June 7, 2018