Terms and Conditions

Phone Sherpa Terms and Conditions

Phone Sherpa Inc, a Washington corporation, with offices located at 1914 N. 34th, Seattle, WA (“Phone Sherpa”) provides content conversion and other services through our website located on the World Wide Web at http://www.phonesherpa.com (the “Service”). To use the Service you agree to these terms and conditions of service (this “Agreement”), which is a legal and binding document by and between you and Phone Sherpa. Please read the Agreement carefully before registering for and/or using the Service.

1. Registration. In registering with Phone Sherpa, you must provide us with certain requested information about yourself related to the Service, and the general management of your account with Phone Sherpa, such as, your name, email address, and mobile phone number (the “Registration Data”). You represent that all information that you provide to Phone Sherpa is and will be accurate, complete and timely at the time that it is given. Information collected from you by Phone Sherpa is governed by the Phone Sherpa Privacy Policy, a copy of which is available at www.phonesherpa.com/privacy_policy.aspx . Minors may not use the Service. By accepting this Agreement, you represent and warrant that you are at least 18 years old.

2. Use of the Phone Sherpa Service. Phone Sherpa offers certain web-based content conversion software to users of the Site (the “Service”). For purposes of this Agreement the Service to the extent provided to you by Phone Sherpa shall been deemed part of the Site. Phone Sherpa reserves the right to suspend and/or cancel any account and your access to the Site for any reason not prohibited by law. In the event of such cancellation or termination, except for your breach, Phone Sherpa will return a pro-rata portion of the fees paid for such terminated service, if any. In the event that such cancellation or termination is due to your breach of this Agreement, fees paid for such terminated service shall not be returned.

3. Service Fees. If you choose to purchase the Service, you agree that you will pay the applicable subscription fees for the subscription that you have chosen, as set forth on http://www.phonesherpa.com/purchase.aspx.

4. Refunds / Cancellations. Refunds for purchases of the Service are not offered in any way. You acknowledge and agree that you have been provided with: (i) a free trial of the Service before purchase, and/or (ii) free access to the Site’s phone testing functionality before purchase. By using a combination of methods (i) and (ii) above, you agree that any technical problems related to the Site, the Service, your cell phone carrier, and your cell phone handset were noted during these tests. If after these tests you purchased the product, you waive all claims to technical incompatibility or other issue(s) that renders the service impaired with respect to your subscription. Subscriptions purchased with one combination of phone model and carrier are not guaranteed to work with different combinations of phone model and carrier. You also agree that changing (i) cell phone models, (ii) cell phone carriers, or (iii) cell phone numbers, may render the Service impaired with respect to your subscription. Cancellation of subscription are not offered, though one can simply discontinue use the Service. Phone Sherpa will not renew or auto bill for any new product or any renewal product without explicit action by you.

5. Submissions. You acknowledge that you are responsible for the information and material that you (or your representatives) submit to the Site or transmit using the Service (your “Submissions”), and that you, and not Phone Sherpa, will have full responsibility for each of your Submissions, including its legality, reliability, appropriateness, originality and non-infringement. As such, you agree to indemnify and hold Phone Sherpa entirely harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) incurred by Phone Sherpa in relation to, arising from or for the purpose of avoiding any claim or demand from a third party that your Submissions, your use of the Site or the use of the Site by any person using your screen name and/or password violates any applicable law or regulation, or the rights of any third party.

6. Password Restricted Areas of the Site. Certain areas of the Site may be password restricted to registered users (“Password-Protected Areas”). If you have registered as an authorized user to gain access to these Password-Protected Areas, you agree that you are entirely responsible for maintaining the confidentiality of your password, and agree to notify Phone Sherpa if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for any and all activities that occur under your account, including any fees that may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You agree to immediately notify Phone Sherpa of any unauthorized use of your account or any other breach of security in relation to your password or the Site that is known to you.

7. Service Use Policies. As a condition of accessing this Site you agree that you will not:

(a) Use Phone Sherpa’s facilities, services or resources (including the Site) in a manner with violates any applicable laws, regulations or third party rights;

(b) Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) or others; use racially, ethnically, or otherwise offensive language; or use explicit or obscene language or solicit, transmit, or post sexually explicit images (actual or simulated) in connection with your use of the Site;

(c) Use the Service in connection with any content for which you do not have the right to copy, transmit, modify, and play back or display using your mobile phone;

(d) Use Phone Sherpa’s facilities, services or resources in a manner which interferes with or disrupts other network users, services or equipment. Such interference or disruption includes, but is not limited to: (i) propagation of computer worms or viruses, (ii) use of the network to make unauthorized entry to other computational, information or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission;

(e) Use Phone Sherpa’s facilities, services or resources for commercial purposes, or for the benefit of any third parties;

(f) Distribute any content that you create using the Service to any third parties; or

(g) Use the Service in a manner that Phone Sherpa reasonably deems to be inappropriate (e.g., unauthorized access, denial of service attacks, etc…).

8. Use of Copyrighted Materials/Trademarks. Any materials on the Site that are provided by Phone Sherpa or its licensors, including without limitation any documentation, content, text, data, graphics, images, interfaces or other materials or works of authorship, (the “Materials”) are copyrighted materials owned by or licensed to Phone Sherpa. All rights are reserved. The Materials contain trademarks, service marks and trade names which are owned by Phone Sherpa and its affiliates, and may also contain brand and product names which are trademarks, service marks or trade names of third parties which are owned by their respective owners. Except as otherwise noted in the Site, you are hereby authorized to view, cache, copy and print the Materials solely for personal non-commercial use and not for resale or further distribution, subject to the terms and conditions of this agreement. Phone Sherpa reserves the right to revoke such authorization at any time. Any product, process or technology described in the Materials or offered through the Site may be subject to other intellectual property rights reserved by Phone Sherpa, its affiliates, or third parties. Nothing contained in the Site shall be construed as conferring any license or right under any copyright, trade secret, patent, trademark or other intellectual property rights (“IP Rights”) of Phone Sherpa or any third party, and, except as expressly provided herein, all such IP Rights in the Materials on the Site are expressly reserved to Phone Sherpa, and/or any third party, as applicable.

9. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN. PHONE SHERPA PROVIDES THE SITE ON AN “AS IS” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE. PHONE SHERPA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT PHONE SHERPA DOES NOT WARRANT THAT ACCESS TO THE SERVICE AND THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT COMPROMISE OR INFILTRATION OF SECURITY SYSTEMS. USE OF ANY INFORMATION OBTAINED VIA THE SITE, THE WEB ADMINISTRATION SERVICES, OR OTHERWISE THROUGH THE MOS NETWORK IS AT YOUR OWN RISK. MOS SPECIFICALLY DENY ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH OUR SITE OR SERVICES.

10. Limitation of Liability. IN NO EVENT SHALL PHONE SHERPA OR ITS THIRD PARTY PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY DAMAGES IN CONNECTION WITH YOUR USE OF THE SITE (OR YOUR INABILITY TO USE THE SITE). IN NO EVENT WILL PHONE SHERPA OR ITS THIRD PARTY PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM CLAIMS RELATED TO PERSONAL INJURY OR DEATH, LOSS OF DATA, LOST REVENUE, LOST PROFITS, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE, CHANGE IN APPLICABLE GOVERNMENT REGULATIONS, REGARDLESS OF THE FORM OF THE ACTION AND REGARDLESS OF WHETHER PHONE SHERPA OR ITS THIRD PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING LIMITATIONS, IN NO EVENT WILL THE TOTAL, CUMULATIVE LIABILITY OF PHONE SHERPA OR ITS THIRD PARTY PROVIDERS FOR DAMAGES UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100.00).

11. Indemnification. You shall, at your expense, indemnify, hold harmless, and at Phone Sherpa’s option and request, defend Phone Sherpa, our third party providers, and our officers, employees, and agents from any cost, expenses (including attorneys’ fees), losses, damages or liabilities incurred arising out of your actual or alleged (i) failure to perform any obligation under this Agreement, or (ii) illegal, harmful or fraudulent conduct.

12. Notices of Copyright Infringement. Phone Sherpa respects the intellectual property rights of others, and asks you to do the same. Phone Sherpa may, in appropriate circumstances and at its discretion, terminate service to users who infringe the intellectual property rights of others. If you believe that your work has been posted on the Site in a way that constitutes copyright infringement, please contact Phone Sherpa at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the URL or other specific location on the Site where the material that you claim is infringing is located; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Phone Sherpa’s designated agent for notice of copyright infringement can be reached at:

Phone Sherpa Inc
Attention: Copyright Compliance Officer
PO Box 19657
Seattle, WA 98109-1657
copyright@phonesherpa.com

13. Privacy Policy. To learn more about Phone Sherpa’s privacy practices please review our privacy policy which is located at www.phonesherpa.com/privacy_policy.aspx, and incorporated into these Terms and Conditions of Service by reference. By agreeing to these Terms and Conditions, you acknowledge that you have read and understand this Privacy Policy and agree to its terms.

14. Appropriateness. Phone Sherpa controls and operates the Services from its headquarters in the United States of America and makes no representation that the Services are appropriate or will be available for use in other locations. You agree that you are solely responsible for compliance with applicable law as applied in your jurisdiction.

15. Term and Termination. This Agreement is effective until terminated. Either party may immediately terminate this Agreement at any time by providing written notice to the other. If you violate this Agreement, Phone Sherpa reserves the right to terminate your ability to use the Services. In addition, you agree to terminate your use of the Service upon request. The following provisions shall survive the termination of this Agreement: 9, 10, 11, 12, and 16.

16. General.

(a) Notice. Any notice provided for or permitted under this Agreement will be treated as having been given when (i) delivered personally, (ii) sent by confirmed telex or fax, (iii) sent by commercial overnight courier with written verification of receipt or (iv) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the at such address that you provide to Phone Sherpa as a part of your Registration Data, or if to Phone Sherpa to the physical mailing address set forth in Section 17 below. Additionally, Phone Sherpa may provide written notice to you by sending an email or SMS message to the email address or phone number provided by you in your Registration Data, which shall be effective upon dispatch.

(b) You agree that, in Phone Sherpa’s efforts to promote good citizenship within the Internet community, if Phone Sherpa becomes aware of inappropriate use of the Services, Phone Sherpa may respond. You acknowledge that Phone Sherpa may report to law enforcement authorities any actions which may be considered illegal, as well as any reports it receives of such conduct.

(c) You will not assign or transfer any rights or obligations under this Agreement, without the prior written consent of Phone Sherpa and any attempted assignment or transfer without such prior written consent shall be null and void.

(d) You agree that Phone Sherpa can revise the terms of this agreement at any time by updating this posting on the Site. You agree that your continued use of the Site after such modifications have been made constitutes your acceptance of such revised terms.

(e) Any action related to this Agreement will be governed by the laws of the State of Washington and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The parties agree that venue for any dispute arising under this Agreement and/or your use of the Services will lie exclusively in the state or federal courts located in King County, Washington.

(f) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect. The failure of Phone Sherpa to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Phone Sherpa in writing. This Agreement comprises the entire agreement between you and Phone Sherpa and supersedes all prior or contemporaneous negotiations, discussions or agreements, if any, between the parties regarding the subject matter contained herein.

17. How To Opt In. To use or "opt-in" to our service, you must signup through our website by creating an account. We require your cellphone number, carrier, and phone model when creating the account. This does not sign you up for any products or services; you are not billed for creating an account. Phone Sherpa does not have reoccuring billing for any of its products or services. All billing is one time only and can only be initiated by the user.

18. How To Opt Out. To discontinue your Phone Sherpa account or "opt-out", you may simply stop using the service. Your account information will never be sold and there is never any reoccuring billing. All purchases are explicitly initiated by the user of the service. You may text "STOP" to 23666 to cancel any active credit packages that you have already paid for with Phone Sherpa. You may go to http://www.phonesherpa.com/email_optout.aspx to remove your email address from Phone Sherpa's internal marketing list.

19. Contact Us and Support. Phone Sherpa can be reached using the following contact information:

Phone Sherpa Inc
PO Box 19657
Seattle, WA 98109-1657
service@phonesherpa.com
Or text "HELP" to 23666 from your cell phone