Terms and Conditions

This statement was last updated on February 28, 2005.

1. Acceptance of Terms.

This Electronic Commerce Internet Web site (the "Smart Online Site") is owned and operated by Smart Online, Inc. ("Smart Online"). In order for you to make use of the Smart Online Site, it is required that you agree to all of the terms and conditions of this Agreement, which may be updated by Smart Online from time to time without notice to you by posting revised Terms on our website. This Agreement states the terms and conditions under which electronic commerce, Smart Online content, software and any other material are provided. In addition to these terms and conditions, you shall be bound by any additional terms, guidelines or rules that may appear throughout the Smart Online Site, which are incorporated herein by this reference. Any modifications or enhancements to the Smart Online Site shall be governed by the terms and conditions of this Agreement. Your use of the Smart Online Site constitutes your binding acceptance of these Terms, including any modifications that we may make.

2. Registration.

Each registration is for a single user only. In consideration of your use of the Smart Online Site and the services contained therein, you agree to provide accurate, current and complete information about yourself or your company as requested on the Smart Online Site registration form and to maintain and promptly update the information (including, in particular, your e-mail address) you provide from time to time as necessary to keep the information true, accurate, current and complete. By accepting the terms and conditions of this Agreement, you also represent and warrant that you are 18 years of age or older and that if you have accepted the terms and conditions of this Agreement on behalf of any business (such as a corporation, partnership, limited liability company or other organization) or other entity, you represent and warrant that you have legal authority to do so.

Any changes to your registration information should be made on the Smart Online Site. If you provide information that is untrue, inaccurate, not current or incomplete, Smart Online may suspend or terminate your account, and refuse any and all current or future use of the Smart Online Site and the services provided.

3. Smart Online Security and Privacy Statement.

Registration and other information about you are subject to Smart Online's privacy policy and shall only be used in accordance with that policy. For more information, please go to the Smart Online Security and Privacy Statement

4. Member Account, Password and Security.

After you register on the Smart Online Site, you will receive a password for your use of the Smart Online Site and the services offered therein. You are responsible for keeping your password confidential. You will be responsible for all uses of your password and account. You will close the browser window for the Smart Online Site at the end of each use, and you will immediately notify Smart Online of any unauthorized use of your password. Smart Online cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

5. Your Use of the Smart Online Site.

You are solely responsible for all messages, data, information and other materials (the "Messages") that you upload, post, e-mail or otherwise transmit ("Transmit") to the Smart Online Site.

You further agree that you will not: a. Use the Site in any unlawful manner or Transmit any Content or Message that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another's privacy or racially, ethnically or otherwise objectionable; b. Use the Site to harm minors in any way; c. Transmit any Messages: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringe any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret of any third party; (iii) that constitute unsolicited or unauthorized advertising or promotional materials, "spam," "chain letters," or pyramid schemes; or (iv) that contain any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data; d. Forge headers or otherwise manipulate identifiers in order to disguise any messages transmitted through the Smart Online Site; e. Interfere with the Smart Online Site or servers or networks connected to the Smart Online Site; f. Interfere with the ability of others to use the Smart Online Site; g. Reproduce, sell, resell, sub-license, distribute or exploit for any commercial purposes, any portion of the Smart Online Site or any Messages contained therein; or h. Conduct your business on the Smart Online Site or any web sites, with respect to Smart Online, in a way that is unfair, unlawful, or constitutes a deceptive business practice; i. Otherwise use the Smart Online Site in connection with violation of any law or contract. You acknowledge and agree that Smart Online may disclose or use any Messages that you Transmit for the purposes of (i) enforcing the terms and conditions of this Agreement; (ii) complying with any laws, regulations or rules of any federal, state or local government or agency; (iii) responding to claims that any Messages violate the rights of third parties; or (iv) protecting the rights or property of Smart Online, its customers and the public. With respect to Messages that you Transmit to public areas of the Smart Online Site, you grant Smart Online a perpetual, worldwide, royalty-free, nonexclusive license to reproduce, display, publish, modify, distribute and create derivative works of such Messages.

6. Maintenance of the Smart Online Site.

You agree and acknowledge that Smart Online may modify, limit, suspend or discontinue the Smart Online Site or any part of the Smart Online Site at any time, without notice or liability to you. Smart Online may also, from time to time, establish general rules and policies regarding use of the Smart Online Site. Smart Online will post such rules and policies on the Smart Online Site, and you agree that your compliance with such rules and policies shall be a condition of your use or continued use of the Smart Online Site. Smart Online shall have no liability or responsibility with respect to any lost data or Messages, such as the deletion or failure to store messages, communications or other Messages transmitted by you.

7. Linked Sites.

Smart Online has not reviewed all of the sites linked to the Smart Online Site and is not responsible for the content of any third-party pages or any other sites linked to the Smart Online Site. Nothing in the Smart Online Site, including, without limitation, any links to other sites, should be construed as an endorsement of any products, services or information of any other persons or companies by Smart Online. Your choice to link to any other off-site pages or other sites is at your own risk, and you agree to comply with all terms and conditions relating to such pages or sites. Smart Online reserves the right not to link, or to remove the link, to a particular site at any time. Any links to third party sites are provided as a convenience to you and are not owned nor operated by Smart Online. Smart Online has no control over these linked sites, and makes no representations or warranties with respect to these linked sites. Your viewing and use of any third party sites is at your sole discretion and risk.

8. Special Admonitions for International Use.

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

9. Indemnification.

You agree to hold harmless and indemnify Smart Online, its subsidiaries and affiliates, business partners, contractors, clients and service providers, and their respective officers, employees, agents and representatives from and against any claims, liabilities, costs or damages, including reasonable attorneys' fees and paralegal fees through final appeals, made by any third party, or relating to or arising from your use of the Smart Online Site, any Messages that you Transmit to or through the Smart Online Site, any violation of these Terms and Conditions by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Smart Online Site.

10. Smart Online Site Content.

The Smart Online Site and all material on the Smart Online Site (the "Content") contained therein, including, without limitation, all text, graphics, and other works on the Smart Online Site, the Smart Online Site's design and coding, all computer programs used and licensed in connection with the Smart Online Site, the look and feel of the Smart Online Site, and all data and reports generated by the Smart Online Site are owned by Smart Online or a third party. These materials are protected under copyright, trademark and other laws. Except in connection with browsing the Smart Online Site, ordering products through the Smart Online Site or otherwise as expressly authorized by Smart Online or the owner of the Content in question, you may not copy, download, transmit, modify, distribute or republish any of the Content displayed on the Smart Online Site, without the prior written consent of Smart Online. You may not sell, publicly display, create derivative works of, reverse engineer, assign, sub-license, transfer or otherwise exploit the Smart Online Site or any Content therein. Smart Online grants you a personal, non-transferable, nonexclusive license to use the Smart Online Site and the Content displayed therein, provided that you comply with these Terms and Conditions and any other rules regarding such use.

11. Smart Online Trademarks.

Following are trademarks or registered trademarks of Smart Online:
SMART BUSINESS PLAN(R)
SMART MARKETING PLAN(R)
SBSN
BUSINESS SURVIVAL NETWORK
SMART ATTORNEY(R)
EMPOWERING SMALL BUSINESSES GLOBALLY(R)
SMART BUSINESS SYSTEM
SMART ACCOUNTANT(R)
SMART VENTURE(R)
SMART ASESOR(R) - Spain
SMART SURVEY(R)
SMART EMPRENDADOR(R) - Spain
SMART ONLINE(R)
SMART BUSINESS SYSTEM EU(R) - Germany
ONEBIZ
OneBiz(sm) Platform

The trademarks listed above are and shall remain the property of Smart Online. All other trademarks, service marks, logos, and company names (each a "Mark") used in the Smart Online Site are the property of Smart Online or third parties and shall remain the property of Smart Online and such third parties. Nothing contained in the Smart Online Site shall be construed as granting, by implication or otherwise, any license or right to use any Mark displayed on the Smart Online Site without the written permission of Smart Online or such third party that may own the Mark displayed on the Smart Online Site. Your misuse of any Mark displayed on the Smart Online Site, or any other content on the Smart Online Site is strictly prohibited.

12. Payment.

Price and availability of the Smart Online products and services sold through the Smart Online Site are subject to change without notice. All payments (including any applicable taxes) must be made by credit card in United States dollars or any alternative currency Smart Online may specify. If Smart Online (or its designated agent) does not receive payment authorization from your credit card clearing service, Smart Online may immediately suspend your use of the Smart Online Site. You are responsible for the payment of all charges associated with the use of the Smart Online Site using your user ID and password, and for submitting and maintaining accurate credit card account information on the Smart Online Site therefore.

If your use of the Smart Online Site is terminated by Smart Online, you shall be entitled to receive a refund of any credits that remain unused at the time of termination (unless your use is terminated because you are in breach of the terms and conditions of this Agreement). You shall still be responsible for any fees or other charges incurred by you until the termination of your rights to use the Smart Online Site.

13. Record of Purchase History.

Subject to the terms stated herein, the Smart Online Site shall make available to you information documenting the transactions made through the Smart Online Site using your user ID and password. This transaction information is customarily updated within one business day of the related transaction activity, and may be accessed from the "Transaction History" page on the Smart Online Site.

14. Refunds

Smart Online's refund policy for its services are as follows: Smart Online considers all sales to be final. Refunds for transactions made through the Smart Online Site may be made at the sole discretion of Smart Online during the seven-day period following transactions made through the Smart Online site (the "Refund Period"). Refunds made during the Refund Period shall be limited to a maximum of $25 per month, per user. Such refunds are not customary after a seven-day period following transactions made through the Smart Online site, and are considered only for cases in which a service or product of Smart Online fails to perform according to its explicitly stated specifications.

In order to be eligible for a refund, you must supply to Smart Online the transaction confirmation number associated with the purchase on the Smart Online Site, and your Smart Online Site user ID. This confirmation number will be made available to you on the "Transaction History" page on the Smart Online Site.

15. User Files ("My Documents").

Transmitting Messages to the Smart Online Site may result in the creation of one or more electronic files, which are stored in repositories labeled "My Documents" on the Smart Online Site. Smart Online shall, for an indefinite period, retain these files for your ongoing use, provided that you submit your user ID and password on a login page of the Smart Online Site at least once every sixty (60) days since the creation of the file(s). Smart Online shall notify you via e-mail twenty-one (21), seven (7), and (3) days prior to the deletion of these files on the sixtieth day of login inactivity.

Notwithstanding the above, Smart Online retains the right to delete the above-referenced electronic files upon issuance of a refund to you, without prior notification to you via e-mail or other means.

16. Software Applications.

Any software (the "Software") that is made available through the Smart Online Site to download, use or otherwise license is the copyrighted work of Smart Online and/or its third-party suppliers. If applicable, use of the Software shall be governed by the terms of a license agreement (the "End User License Agreement"), which may accompany or be included with the Software. You agree to comply with the terms of all End User License Agreements that may be associated with Software that you download, use or otherwise license through the Smart Online Site, in addition to the terms and conditions of this Agreement.

17. Termination.

You acknowledge and agree that Smart Online may terminate your account or use of the Smart Online Site for any reason, including, without limitation, for your violation of the terms and conditions of this Agreement or your lack of use of the Smart Online Site. You agree that Smart Online may terminate your access to and use of the Smart Online Site without prior notice and without any liability to you or any third party.

18. Disclaimers and Limitation of Liability.

SMART ONLINE IS PROVIDING THE SMART ONLINE SITE AND ITS CONTENTS, INCLUDING EXPERT CONTENT AND ADVICE DELIVERED TO YOU VIA EMAIL OR TELEPHONE EXCHANGE, ON AN "AS-IS," "AS-AVAILABLE" BASIS. SMART ONLINE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW WITH RESPECT TO THE SMART ONLINE SITE OR THE CONTENT CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, SMART ONLINE DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SMART ONLINE SITE IS ACCURATE, COMPLETE OR CURRENT OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. SMART ONLINE DOES NOT WARRANT THAT THE SMART ONLINE SITE WILL OPERATE IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER. THE INFORMATION ON THE SITE IS FOR YOUR GENERAL USE ONLY AND SHOULD NOT BE RELIED ON IN MAKING ANY SPECIFIC FINANCIAL, LEGAL OR OTHER DECISIONS.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SMART ONLINE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SMART ONLINE SITE IS DONE AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITY. SMART ONLINE AND THIRD PARTIES WHO CONTRIBUTE TO THE SMART ONLINE SITE, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND OTHER REPRESENTATIVES, ARE NOT RESPONSIBLE FOR ANY DIRECT, INDIRECT, PUNITIVE, ECONOMIC, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF GOODWILL OR LOST PROFITS YOU MIGHT INCUR ARISING OUT OF OR IN ANY CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SMART ONLINE SITE, THE SMART ONLINE SITE CONTENT, OR OTHERWISE ARISING OUT OF ANY SMART ONLINE WEB SITES, INCLUDING WITHOUT LIMITATION ANY AND ALL LIABILITY ARISING OUT FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, AND ANY OTHER STATUTORY CONTRACT, TORT AND/OR OTHER LIABILITY, EVEN IF SMART ONLINE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

NO INFORMATION DISPLAYED OR INCLUDED IN THE SMART ONLINE SITE OR OTHERWISE OBTAINED BY YOU FROM SMART ONLINE OR IN CONNECTION WITH YOUR USE OF THE SMART ONLINE SITE SHALL CREATE ANY WARRANTY, NOR IS IT INTENDED TO SUPPLY LEGAL, FINANCIAL, MANAGEMENT, HUMAN RESOURCES, ACCOUNTING, OR OTHER FORMS OF ADVICE. USE OF THE SMART ONLINE SITE IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY OR OTHER PROFESSIONAL ADVISOR. IF LEGAL OR OTHER EXPERT ASSISTANCE OR ADVICE IS REQUIRED, THE SERVICES OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT.

IN NO EVENT SHALL SMART ONLINE OR THIRD PARTIES WHO CONTRIBUTE TO THE SMART ONLINE SITE BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY OR CLAIMS OF THIRD PARTIES. IF YOU LIVE IN A JURISDICTION WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SMART ONLINE SITE IN ACCORDANCE WITH THESE TERMS, SMART ONLINE'S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.

19. Proper Law and Jurisdiction.

The Smart Online Site is controlled and managed from the Smart Online offices in Durham, North Carolina. All rights and obligations relating to formation or performance of the agreement contained in the terms and conditions of this Agreement shall be governed by the laws of the State of North Carolina, without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sales of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in North Carolina, shall not apply. The exclusive forum for the resolution of any dispute relating to the terms and conditions of this Agreement shall be the state and federal courts in Raleigh, North Carolina, USA, and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to the terms and conditions of this Agreement, and agree to service of process on you by e-mail to the address you have submitted on the Smart Online Site, or by any other means deemed reasonable by Smart Online.

20. Notice.

Notices to you may be made via either e-mail or regular mail. Smart Online may also provide Notices of Changes in the terms and conditions of this Agreement or other matters by displaying notices or links to notices to you generally on the Smart Online Site.

All notices, demands, or consents given under this Agreement from you will be in writing and will be deemed given when delivered to Smart Online by an email with the subject heading "CONTRACT NOTICE" which is sent to a Smart Online-designated URL for support and/or notices found at info@us.smartonline.com.

21. Violations.

Please report any violations of the terms and conditions of this Agreement to Smart Online.

22. Miscellaneous.

You may not assign, sub-license or otherwise transfer any of your rights under the terms and conditions of this Agreement.

If any provision of the terms and conditions of this Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of that provision shall not affect the validity of the remaining provisions of is Agreement, which shall remain in full force and effect.

Headings in the terms and conditions of this Agreement are for convenience only and shall have no legal meaning or effect.

No action arising under this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.

The terms and conditions of this Agreement, and not the conduct between us or any trade practice, shall control the interpretation of the agreement between the parties respecting the Smart Online Site. Smart Online's decision not to enforce a particular provision of this Agreement does not mean that Smart Online waives the right to enforce it. Smart Online shall waive such a right only in writing.
