WEBSITE CONTENT MANAGEMENT SERVICES TERMS OF USE

as of January 1, 2010

These Website Content Management Services Terms of Use (this “Agreement”) is between you (“Customer”) and thinkSmart LLC (“thinkSmart”).  thinkSmart provides a website content management system which enables users to post and update website content (the “Services”).

PLEASE READ CAREFULLY THE TERMS OF THIS AGREEMENT.  BY ACCESSING, BROWSING AND/OR OTHERWISE USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING TERMS, AND ANY FUTURE MODIFICATIONS.  IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN PLEASE DO NOT USE THE SERVICES.

1.       Services.

1.1                Access.  The Services are hosted and operated by or on behalf of thinkSmart.  Subject to the terms and conditions of this Agreement, thinkSmart grants to Customer a license to access and use the Services as set forth in this Agreement and consistent with the intended features of the Services.

1.2                Reservation of Rights.  Except as explicitly stated herein, thinkSmart hereby reserves all rights in the Services and any related thinkSmart software.  Customer shall not reverse engineer or otherwise attempt to derive source code from the Services or any related software.

1.3                Customer Content.  Customer shall retain all ownership rights in original aspects of any text, images, graphics, pictorial works, videos, documents or other materials posted, uploaded or otherwise submitted by Customer through the Services (the “Content”).  By posting, uploading or otherwise submitting any Content through the Services, Customer hereby grants to thinkSmart a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit the Content as necessary to provide the Services.

2.       Authorized Users.  Access to the Services is limited to one or more registered accounts which require a user name and password.  Customer is solely responsible for maintaining the confidentiality of Customer’s account and password, and Customer shall be responsible for all activities that occur under Customer’s account.  Access to the Services under this Agreement is limited to Customer only, and only for Customer’s internal business purposes, and not for resale to any third party.

3.       Updates.  thinkSmart may update the Services and the hardware and software used to provide them from time to time.  However, nothing in this Agreement will obligate thinkSmart to provide any update (i.e. revisions to the Services that include new features or increases in functionality).

4.       Representations and Warranties.

4.1                Warranties by Customer.  Customer represents and warrants that: (i) Customer owns, or has the necessary licenses, rights, consents, and permissions to use and authorize thinkSmart to use the Content in the manner contemplated by this Agreement, and (ii) the Content and thinkSmart’s use of the Content pursuant to the terms of this Agreement do not and will not:  (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; (c) violate any applicable law or regulation; or (d) require thinkSmart to obtain a license from or pay fees or royalties to any third party to exercise any rights granted in this Agreement.

4.2                Warranties and Disclaimers by thinkSmart.  THE SERVICES ARE PROVIDED “AS IS,” AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK.  THINKSMART DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THINKSMART DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

5.       Limitations of Liability.

5.1                Exclusions.  THINKSMART WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF THINKSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

5.2                Maximum Liability.  THINKSMART’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO 100 UNITED STATES DOLLARS.

5.3                Basis of the Bargain; Failure of Essential Purpose.  Customer acknowledges that thinkSmart has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

6.       Indemnification of thinkSmart.  Customer shall indemnify and hold thinkSmart and its affiliates, suppliers and partners harmless from any claims, losses, damages, liabilities, including attorney's fees, arising out of Customer’s use of the Services in an unauthorized manner or other than as contemplated hereunder, violation of this Agreement, including without limitation, any breach of the foregoing representations and warranties, and any violation of the rights of any other person or entity.  thinkSmart reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify thinkSmart, and Customer agrees to cooperate with thinkSmart’s defense of these claims.

7.       Term and Termination.

7.1                Term.  This Agreement will be effective commencing on the Effective Date, and continuing indefinitely thereafter unless and until terminated according to the provisions of this Section info7.

7.2                Termination for Convenience.  Either party may terminate this Agreement for convenience upon providing 30 days’ written notice to the other party.

7.3                Termination for Cause.  Either party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same.  Either party may terminate this Agreement if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.

7.4                Survival.  The following provisions will survive any expiration or termination of the Agreement:  Sections

8.       Modification of the Terms.  thinkSmart reserves the right, at its discretion, to change, modify, add or remove portions of this Agreement at any time.  Please check this Agreement periodically for changes.  Customer’s continued use of the Services after the posting of changes constitutes binding acceptance of such changes.  For any material changes to this Agreement, such amended terms will automatically be effective 30 days after they are initially posted.  In the event that such modifications materially alter Customer’s rights or obligations hereunder, such modified Agreement will become effective upon the earlier of (i) Customer’s continued use of the Services with actual knowledge of such modified Agreement, or (ii) 30 days from publication of such modified terms.

9.       Miscellaneous Provisions.

9.1                Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

9.2                Governing Law; Venue.  This Agreement will be interpreted and construed in accordance with the laws of the State of California, without regard to conflict of law principles.  All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and each party hereby consents to the personal jurisdiction thereof.

9.3                Severability; Waiver.  In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

9.4                Assignment.  Customer may not assign its rights or delegate its duties under this Agreement by operation of law or otherwise, including in connection with a merger, change of control or acquisition of all or substantially all of Customer’s assets, either in whole or in part without the prior written consent of thinkSmart.  Any attempted assignment or delegation without such consent will be void.  thinkSmart may assign this Agreement in whole or part.  This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

9.5                Notices.  Legal notices will be served, with respect to thinkSmart, to info@thinksmart.com, and, with respect to Customer, to the email address Customer provides to thinkSmart during the registration process.  Alternatively, thinkSmart may give Customer legal notice by mail to the address provided during the registration process.  Notice will be deemed given as of the date it is delivered, mailed or sent, whichever is earlier.

9.6                Relationship of Parties.  thinkSmart and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between thinkSmart and Customer.  Neither thinkSmart nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. 

9.7                Entire Agreement.  This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.