Effective Date: February 3, 2019
1. ACCEPTANCE OF THE USER AGREEMENT
This User Agreement is a contract entered into by and between you and TradeSherpa Inc. (“TradeSherpa” or “we” or “us”). The terms and conditions of this User Agreement govern your access to and use of TradeSherpa.com (the “Website”), including any content, functionality, and services offered by us on or through the Website, as well as any offsite communications with and collection of data by TradeSherpa relating to those services (collectively, the “Services”), whether or not you have registered for an account.
By clicking to accept this User Agreement, or by registering for, accessing, or using our Services, including on behalf of a company or organization (a “Company”), you are agreeing to enter into a legally binding agreement with TradeSherpa. If you do not agree to this User Agreement, do not click to accept it, and do not access or otherwise use any of our Services.
If you are using our Services on behalf of a Company, the terms “you” and “Client” (as defined herein) include both you as an individual and the Company. By using our Services on behalf of a Company, you represent that you have the legal authority to bind that Company contractually, and you agree that you are doing so by entering into this User Agreement.
Additional terms and conditions may apply to specific portions or features of the Services. All such additional terms and conditions that are provided by us when you engage with such portions or features of the Services are hereby incorporated by this reference into this User Agreement, and shall hereinafter be referred to as the “Additional Terms.”
We may change or modify the terms of this User Agreement at any time by posting a revised version on the Website. If we make material changes to the terms, we will provide you with notice through our Services, or by other means such as email, to provide you the opportunity to review the changes before they become effective. If you object to any changes, you may close your account. Your continued use of our Services after we provide notice about our changes to the terms means that you are consenting to the updated terms.
2. USE OF SERVICES
To use the Services, you must be, and you hereby represent that you are, 18 years of age or older and able to form legally binding contracts.
TradeSherpa offers the Services for business purposes only, not for personal, household, or consumer use. You represent that you intend to use the Services for business purposes only. This User Agreement is not a consumer contract.
You represent that you are not (i) prohibited from accessing or using this Website or any of our Services by applicable law, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services.
We reserve the right, in our sole discretion, to refuse, suspend, or revoke your access to the Services if, in our opinion, you have violated the terms of this User Agreement, or for any other reason, or no reason, in our sole discretion. In such a case, you agree not to access or use the Website or the Services.
2.2 Account Registration; Profile
To access the Services available only to registered users (“Clients”), you must register for an account (“Account”) and create a profile (“Profile”). You agree not to register for more than one Account and you agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit. You agree to provide true, accurate, and complete information to us for purposes of the performance by us of the Services hereunder. You understand and acknowledge that you have full responsibility for the information that you provide, including its legality, reliability, accuracy, and appropriateness.
2.3 Username and Password
When you register for an Account, you will be asked to choose a username and password. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You authorize TradeSherpa to assume that any person using the Services with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use any username or password of another user of the Services that you are not authorized to use, and not to allow others who are not authorized to do so use your Account at any time. You are responsible for any actions taken by a person acting with your username and password until you close the account or report unauthorized access to TradeSherpa.
3. PAID SERVICES AND PAYMENT TERMS
3.1 Paid Services
Certain of our Services are available only for a fee (such Services, the “Paid Services”). You agree that by placing an order for Paid Services, you are offering to purchase the Paid Services subject to, and you agree to be bound by the terms of this User Agreement, including any Additional Terms applicable to such Paid Services that are provided by us at the time your order is placed. We may choose to accept or not accept orders in our sole discretion.
Fees for the Paid Services purchased will be the fees advertised on the Website for such Paid Services at the time the order is placed. Posted fees do not include any applicable taxes.
A purchase of Paid Services is final and non-refundable. You agree to pay us the applicable fees and taxes (if any) for any Paid Services purchased, in accordance with the terms set forth in this Section 3.
3.2 Payment Terms
All fees posted on the Website are in US dollars and subject to change without notice. Any change in fees will apply only to orders placed after the time of the change. Posted fees do not include any applicable taxes. Applicable taxes, if any, will be added to your total fees and itemized at the time you place an order.
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payments must be received by us before our acceptance of any order. By submitting a payment to us, you represent and warrant that (i) the credit card or bank account information you supply to us is true, correct and complete, (ii) you are duly authorized to use such bank account or credit card for the purchase, and (iii) charges incurred by you will be honored by your bank or credit card company.
4. ACKNOWLEDGMENT OF RELATIONSHIPS BETWEEN PARTIES
4.1 Relationship Between You and TradeSherpa
You acknowledge and agree that, although our Services may include providing advice and recommendations to you, all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, you.
You further acknowledge and agree that you and TradeSherpa are each an independent contractor and that neither party is, or shall be considered to be, an agent or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other, or in any manner assume or create an obligation on behalf of, or in the name of, the other.
4.2 Relationship Between You and Sherpas
Depending on your use of the Services, and based on the information you provide to us, we may recommend and introduce you to skilled and experienced experts (“Sherpas”) whom you may choose to engage for external services related to your business endeavors (“Sherpa Services”).
Although TradeSherpa facilitates introductions between Sherpas and Clients (an “Introduction”), Sherpa Services are entirely separate from, and not included in, our Services. Clients and Sherpas will be responsible for agreeing between themselves the terms and conditions that will govern their relationship with respect to any Sherpa Services (the “Sherpa Services Contract”). The reference to “Sherpa Services Contract” in this User Agreement includes the terms of any engagement, arrangement, or agreement between a Sherpa and a Client resulting from an Introduction (express, implied, or performed by the parties), regardless of whether a formal services agreement has been signed or brought into existence.
You understand and agree that: (a) TradeSherpa is not a party to, nor will it have any liability or obligations under or in relation to, any Sherpa Services Contract; (b) TradeSherpa does not in any way supervise, direct, or control Sherpas or Sherpa Services; and (c) TradeSherpa has no liability of any kind relating to the Sherpa Services, including (but not limited to) the performance, reliability, capability, or qualifications of any Sherpa and the quality, security, or legality or any Sherpa Services.
4.3 Relationship Between Sherpas and Us
Notwithstanding anything to the contrary in the above Section 4.2, you understand and agree that when you enter into a Sherpa Services Contract with a Sherpa:
a) such Sherpa may share information with us relating to the fees charged to you under the Sherpa Services Contract;
b) at the option and on behalf of such Sherpa, we may bill you directly for the fees owed by you under the Sherpa Services Contract;
c) unless such Sherpa is a member of a certain type of regulated profession (a “Particular Regulated Profession”), such Sherpa will be obligated to pay to us an amount of 10% of the total fees charged to you under such Sherpa Services Contract (the “Commission”).
d) you are authorizing and directing such Sherpa to notify us when you enter into a Sherpa Services Contract with such Sherpa; and
(e) you agree and authorize such Sherpa to notify us of any disputes, complaints, or adverse claims.
TradeSherpa will not receive a Commission as a result of your entering into a Sherpa Services Contract with a Sherpa who is a member of a Particular Regulated Profession (e.g., a lawyer). Sherpas who are members of a Particular Regulated Profession participate in a TradeSherpa membership program (or similar arrangement) and pay us membership fees that are not a function of the fees earned through Sherpa Services Contracts with Clients.
5. INTELLECTUAL PROPERTY RIGHTS
TradeSherpa reserves all of its intellectual property rights in the Services. Using the Services does not give you any ownership in our Services or the content or information made available through our Services. TradeSherpa logos and other TradeSherpa trademarks, service marks, graphics, and logos used for our Services are trademarks or registered trademarks of TradeSherpa. Any other trademarks and logos used in connection with the Services are the trademarks and logos of their respective owners. Although you may use for business planning purposes the material made available to on our Website according to your level of access, you may not reproduce that material or use it for any other purpose.
6. LIMITED WARRANTY
6. 1 TradeSherpa warrants that it will provide the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
6.2 THE WEBSITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE WEBSITE AND SERVICES ARE AT YOUR OWN RISK. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 1, TRADESHERPA MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE WEBSITE, THE SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS USER AGREEMENT, AND THUS MAKES NO WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, EITHER EXPRESS OR IMPLIED.
6.3 Sherpa Services are not included in our Services and are therefore not covered by the warranty in Section 1. For the avoidance of doubt, WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO SHERPA SERVICES OR ANY OTHER THIRD PARTY SERVICES OR PRODUCTS, AND THUS WE MAKE NO WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITL, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, EITHER EXPRESS OR IMPLIED.
6.4 TradeSherpa’s sole obligation and your exclusive remedy for a breach of the warranty set forth in Section 1 shall be for us to, in our sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the amount paid by you for such Services.
7. LIMITATION OF LIABILITY
7.1 TradeSherpa is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this User Agreement, including, but not limited to:
- your use of or your inability to use our Website or Services;
- delays or disruptions in our Website or Services;
- viruses or other malicious software obtained by accessing, or linking to, our Website or Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Website or Services;
- damage to your hardware device from the use of the Website or Services;
- the content, actions, or inactions of third parties’ use of the Website or Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of the Services made available through the Website;
- any decisions made by you as a result of the performance by TradeSherpa of its Services hereunder; and
- your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to the User Agreement.
7.2 IN NO EVENT WILL TRADESHERPA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITY, OR DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.3 IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS USER AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES PROVIDED DIRECTLY BY TRADESHERPA THROUGH THE WEBSITE DURING THE 3-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
You agree to indemnify, defend, and hold harmless TradeSherpa and its directors, officers, employees, representatives, agents, successors, and assigns (each an “Indemnified Party”) from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (a) your violation of this User Agreement, (b) your use of the Website and Services, including but not limited to any use of the information and content obtained from or through the Website and Services, or (c) any Sherpa Services Contract entered into by you.
TradeSherpa may terminate this User Agreement at any time by giving you notice. You may terminate this User Agreement at any time by cancelling your account.
Upon termination of this User Agreement, you will lose the right to access or use the Services.
10. GOVERNING LAW AND DISPUTES
10.1 Governing Law
This User Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
10.2 Informal Resolution of Disputes
If you have a dispute with us arising out of, relating to, or connected with this User Agreement or the Services, you agree (i) to notify us directly and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account), and (ii) to give us 30 days from the date of providing your written description to us to resolve the dispute to your reasonable satisfaction. You agree that you may pursue the dispute in accordance with the arbitration provisions below only if we cannot resolve the dispute through good faith efforts under this informal process.
10.3 Binding Arbitration
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THIS USER AGREEMENT OR THE SERVICES WILL BE RESOLVED ONLY, AND FINALLY, BY BINDING ARBITRATION.
YOU AGREE THAT YOU MAY PURSUE YOUR OWN CLAIMS AND THOSE OF YOUR COMPANY ONLY AND NOT AS A MEMBER OF A CLASS OF PERSONS.
YOU AND TRADESHERPA AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS ARISING FROM OR RELATING TO THIS USER AGREEMENT OR THE SERVICES IN A COURT OF LAW OR BEFORE A JURY. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
If any provision of this Section 10.3 is found unenforceable, the unenforceable provisions will be severed and the remaining arbitration terms will be enforced.
We reserve the right to withdraw or amend this Website, and any Services we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including Clients.
Except as expressly authorized by us, you shall not reproduce, distribute, modify, create derivative works of, publicly display, republish, download, store, or transmit any of the material on the Website.
You may use the Website only for lawful purposes and in accordance with this User Agreement. You agree not to:
- Use the Website in any way that violates any applicable federal, state, or local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website except as expressly authorized by us or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
- Otherwise attempt to interfere with the proper working of the Website.
TradeSherpa may take any appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
12. OTHER TERMS
12.1 Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached this User Agreement, for any failure or delay in our performance hereunder when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
You will not assign any of your rights or delegate any of your obligations under this User Agreement without our express prior written consent, which we may grant or deny in our sole and absolute discretion. Any purported assignment or delegation in violation of this Section 12.2 is null and void. No assignment or delegation relieves you of any of your obligations under this User Agreement.
12.3 No Waivers
The failure by us to enforce any right or provision of this User Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of TradeSherpa.
12.4 No Third Party Beneficiaries
This User Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than you.
You agree that we may provide any notice to you under this User Agreement by: (i) posting on the Website or (ii) sending a message to the email address you provide in your Account. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
You agree that to give us notice under this User Agreement, you must contact us by registered or certified mail to the physical address provided in Section 13. We may update this address by posting a notice on the Website. Such notices provided by registered or certified mail will be effective three business days after they are sent.
12.6 Entire Agreement
13. HOW TO CONTACT US
You can contact us at:
244 5th Avenue, A261
New York, NY 10001