smartmarket

SmartMarket User Agreement

Welcome to SmartMarket, Inc. This SmartMarket User Agreement ("Agreement") is a legal agreement between you ("you," "your") and Our Company ("SmartMarket," "we," "our" or "us").

We want to make it easy for you to send and receive payments, and have developed a service (the "Service," more fully described in Section 1 below) that is subject to the rules and regulations of various payment card networks as well as financial services authorities and regulators in the United States. Before you can use the Service, we require that you accept the terms of this Agreement.

If you do not agree with these terms and do not want to be bound by this Agreement, you will not be granted any rights under this Agreement and you may not download, use, or access the Service. Signing up for SmartMarket means you accept these terms:

1. Your License

SmartMarket is only a Payment Service Provider. SmartMarket helps you make payments to and accept payments from third parties. SmartMarket acts as an independent contractor for all purposes.

The Service includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by SmartMarket. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when SmartMarket makes these updates available.

SmartMarket does not have control of or liability for the products or services that are paid for with our Service(s). We do not guarantee the identity of any User or ensure that a buyer or a seller will complete a transaction.

2. Privacy

Protecting your privacy is very important to SmartMarket. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your Information.

It is your sole responsibility to ensure that your account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the Service is kept safe and confidential. You must prevent unauthorized access to and use of any of your information or data used with or stored in or by the Service. You are responsible for all electronic communications sent to us or to any third party containing Account Data.

If you receive Information about another SmartMarket User through the Service, you must keep the Information confidential and only use it in connection with the Service. You may not disclose or distribute a SmartMarket Userʼs Information to a third party or use the Information for marketing purposes unless you receive the Userʼs express consent to do so.

3. Intellectual Property

"SmartMarketMobile.com", "SmartMarket", and all related logos, products and services described in our website are either trademarks or registered trademarks of SmartMarket or its licensors. You may not copy, imitate or use them without SmartMarketʼs prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of SmartMarket. You may not copy, imitate, or use them without our prior written consent.

You may use HTML logos provided by SmartMarket through our vendor services, promotional tools or affiliate programs without prior written consent for the purpose of directing web traffic to the Service. You may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to SmartMarket or the Service or display them in any manner that implies SmartMarketʼs sponsorship or endorsement.

All right, title and interest in and to the SmartMarket website and any content thereon is the exclusive property of SmartMarket and its licensors.

4. Notices

We have the right and sole discretion to revise, update or otherwise modify the Service and to establish or change limits regarding the use of the Service. You agree that SmartMarket may provide notice to you by posting it on our website, or emailing it to the email address listed in your Account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent.

Notice to SmartMarket must be sent by postal mail to: SmartMarket, Inc., Attention: Legal Department, San Francisco, CA 10001.

5. Service Updates

We may perform maintenance on the Service from time to time and this may result in service interruptions, delays, or errors. We will always attempt to provide prior notice of scheduled maintenance but cannot guarantee that notice will always be provided. You may be offered new services or software that may be in beta and not final. As such, the Service may contain errors and "bugs" that may result in its failure. You agree that we may contact you in order to assist you with the Service and obtain information needed to identify and fix any errors.

6. Transaction History

You may view your transaction history by logging into your SmartMarket Account and looking at your Receipts. You agree to review your transactions through your Receipts instead of receiving periodic statements by mail.

7. Account Registration

You must register and create a "Member" account to use the Service. When prompted by our registration process, you agree to (a) provide true, accurate, current and complete information about yourself, and (b) maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, SmartMarket has the right to terminate your SmartMarket ("Account") and refuse any and all current or future use of the Service. If you open a Member Account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entityʼs behalf. You may access the Service through a mobile device using services provided by third party carriers. These third parties may charge you fees to access the Service. You are solely responsible for the payment of those fees. Your use of the Service may also be subject to the terms of your agreements with your mobile device manufacturer and your carrier. Using the Service with a mobile device requires a mobile device that is compatible with the Service. SmartMarket does not warrant that the Service will be compatible with your mobile device.

9. Privacy

Upon acceptance of this Agreement you confirm that you have read, understood and accepted SmartMarketʼs Privacy Policy.

10. Security

We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

11. No Warranty

6. Transaction History

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, SMARTMARKET, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

SMARTMARKET DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SMARTMARKET WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES

12. Limitation of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTMARKET, ITS PROCESSORS, SUPPLIERS OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL SMARTMARKET BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTMARKET AND ITS PROCESSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL SMARTMARKET, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SMARTMARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled and operated from its facilities in the United States. SmartMarket makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

13. Indemnity

You will indemnify, defend and hold us harmless (and our respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneysʼ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our Policies or the Networksʼ rules; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any Product Information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States or any other country; (f) any other partyʼs access and/or use of the Service with your unique username, password or other appropriate security code.

14. Representation and Warranties

You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; and (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service and (j) you are not engaged in and will not accept payment for any of the following: (1) any illegal activity, (2) adult entertainment oriented products or services (all media types; internet, telephone, printed material, etc), (3) internet/mail order/telephone order pharmacies (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries.), (4) internet/mail order/telephone order firearm or weapon sales, (5) internet/mail order/telephone order cigarette or tobacco sales, (6) drug paraphernalia, (7) occult materials, (8) hate products, (9) online gambling (10) lotteries, raffles, or gambling, (11) escort services, (12) collection agencies engaged in the collection of uncollectible debt as defined by the Associations, (13) credit repair agencies (14) sports forecasting or odds making, (15) any merchant business model for products/services that are solely based on guaranteed "rebate", "refund" or "prize" associated with the sale of those products/services (especially those where the rebate or refund equals or exceeds the product/service purchase price or value), or (16) bankruptcy attorneys.

15. Consent to Electronic Communication

We primarily communicate with you via your registered electronic address (e-mail and Short Message Service ("SMS") messaging). By registering for the services and accepting the terms of this Agreement, you affirmatively consent to receive notices electronically from us. You agree that we may provide all communications and transactions related to the services and your accounts, including without limitation agreements related to the Service, amendments or changes to such agreements, disclosures, notices, transaction information, statements, policies (including without limitation notices about our Privacy Policy), responses to claims, and other customer communications that we may be required to provide to you by law in electronic format. All communications by us will be sent either (a) via e-mail or SMS messaging associated with your mobile phone, (b) by providing access to a Website that we designate in an e-mail or SMS notice to you, or (c) posting on our website. All Communications will be deemed to be in "writing" and received by you when sent to you. You are responsible for creating and maintaining your own records of such communications. You must send notices to us at the designated e-mail addresses on the website or through the submission forms on the website. We reserve the right to discontinue or modify how we provide communications. We will give you prior notice of any change. Your continued consent is required to use your account and the Service. To withdraw your consent, you will need to close your account.

16. Limitation on Time to Sue

Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this Agreement or by law must commence within one year after the cause of action accrues.

17. Amendment

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at http://smartmarketmobile.com or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Service after our publication of any such changes shall constitute your acceptance of this Agreement as modified.

18. Termination

SmartMarket may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability for any reason, including if in SmartMarketʼs sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. We reserve the right (but have no obligation) to delete all of your information and Account Data stored on our servers if your membership is terminated or if you have not renewed your membership subscription. Upon termination you must immediately stop using the Service the license provided under this Agreement shall end. You also agree that upon termination in accordance with this section, SmartMarket shall not be liable to you or any third party for termination of access to the Service or deletion of your information or Account Data. The rights and obligations of Section 12 (Limitation of Liability and Damages) and Section 13 (Indemnity), will survive termination of this Agreement.

19. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SmartMarket without restriction.

20. General Provisions

Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and SmartMarket, and describe the entire liability of SmartMarket and its vendors and suppliers (including Processors) and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and the Privacy Policy, this Agreement shall prevail. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by California law as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in San Francisco County, California or federal court for the Northern District of California. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that SmartMarket may have under trade secret, copyright, patent or other laws. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and SmartMarketʼs failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

Accepting and Making Payments

21. Our Role

You may make payments and accept payments using our Services. Except for our limited role in processing payments that you authorize or initiate, we are not involved in any underlying transaction between you and any customer. We are a payment processor enabling people to accept payments from other people in accordance with Association rules. Our role is solely to provide you with a portal to a financial institution that has access to the ACH system. We are not a bank or a money services business ("MSB") and we do not offer banking or MSB services as defined by the United States Department of Treasury.

22. Your Authorization

You authorize us to hold, receive, and disburse funds on your behalf in accordance with your payment instructions (subject to the terms of this Agreement and our Policies). Your authorization permits us to (a) generate a paper draft or an electronic funds transfer, each to process payment transactions that you authorize. We may use the services of one or more third party Processors and/or financial institutions to provide the Service and process your transactions (each a "Processor"). Your authorizations will remain in full force and effect while you maintain your SmartMarket Account with us. We may decide not to authorize or settle any transaction you authorize if we believe that the transaction is in violation of any SmartMarket agreement, or exposes you, other SmartMarket members, our Processors or SmartMarket to harm, including but not limited to fraud and other criminal acts.

23. Accepting Credit Cards

A. Networks. The Networks require that you will comply with all bylaws, rules, and regulations of the Networks, as may be applicable to you and your Card transactions and as are in effect from time to time ("Association Rules"). You understand that SmartMarket may be required to modify this Payment Services Agreement in order to comply with requirements imposed by the Network Rules. Such rules and regulations may be amended from time to time, that are provided to you or are generally available to the public (including merchant rules posted on usa.visa.com and www.mastercard.com) ("Network Rules"). You may use the logos of the Networks only in the manner authorized by the Networks and to indicate that Cards of the Networks are accepted as methods of payment using the SmartMarket Payments service.

B. Indemnification. You agree to indemnify, defend and hold harmless SmartMarket and Processor against all claims, actions, demands, losses, liabilities, damages, and expenses arising from or related to (a) any breach of any obligation under this Payment Services Agreement or the User Agreement (related to Card transactions processed by SmartMarket), including without limitation any violation of Network Rules; (b) any misrepresentation or fraud by you in applying for or maintaining a SmartMarket Account, your submission of Card transactions for processing, or the operation of your business; or (c) your provision or sale of goods or services to customers for Card transactions processed by SmartMarket.

C. Warranty Disclaimer. Neither SmartMarket nor its Processors make any representations or warranties, whether express or implied, regarding any service provided directly or indirectly to you, including without limitation, any warranties of merchantability, fitness for a particular purpose, title or non-infringement or implied warranties arising from a course dealing or trade usage.

D. Limitation of Liability. To the extent allowed by law, SmartMarket and Processor and their respective affiliates, directors, officers, and employees will not be liable for any indirect, incidental, punitive, or consequential damages arising out of or related to this Payment Services Agreement or SmartMarketʼs payment services, including without limitation any inability, delay, or errors in using the Services at any time without prior notice.

24. Accepted Cards

We may remove or add Cards that we accept at anytime without prior notice. Network Rules currently require that you will not (a) establish limits below which you will not accept a Card, (b) assess a surcharge for the use of a Card in connection with any transaction, or (c) dispense cash on any Card transaction. We will only process Cards that receive an authorization from the applicable Network or card issuer. An authorization does not guarantee that such transaction will be collectible or that the cardholder is actually authorized to use the Card or that the transaction will not be subject to Chargeback (described below).

Chargebacks and Disputed Transactions

25. Your Liability

The amount of a transaction may be charged back or reversed to your PayPal Account (a "Chargeback") if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our Processor, or a payer's or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement (including any Policy).

Payment Terms

26. Our Fees

You agree to pay the applicable fees listed on our Fee Schedule ("Fees") whenever you use our Services. Subject to the terms of this Agreement, we reserve the right to change our Fees. All Balances and all fees, charges, and payments collected or paid through the Services are denominated in US dollars.

27. Our Set-off Rights

To the extent permitted by law, we may set off against the Balances for any obligation you owe us under this Agreement, including without limitation any Chargebacks. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance in your PayPal Account. If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered in your PayPal Account. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees, court costs, collection agency fees, and any applicable interest.

28. Processing Errors

In the event there is an error in the processing of any transaction, you authorize us to initiate debit or credit entries to your PayPal Account to correct such error, provided that any such correction is made in accordance with applicable laws and regulations.

29. Taxes

You are responsible for determining any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding, income, and other taxes and/or duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and services. ("Taxes"). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to determine whether Taxes apply and are not responsible for calculating, collecting, reporting, or remitting any Taxes to any tax authority arising from any transaction.

Termination

30. Your Rights

You may terminate this Agreement and other SmartMarket agreements by closing your SmartMarket Account at any time. Upon closure of a SmartMarket Account, any pending transactions will be cancelled.

31. Effect of Termination

We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Services. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.

General terms

32. Amendment

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the software or services with notice that we in our sole discretion deem to be reasonable in the circumstances, including notice on our website at http://smartmarketmobile.com or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement, and communicate to you. Any use of our software or services after our publication of any such changes shall constitute your acceptance of this Agreement as modified.

33. General Provisions

Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you, SmartMarket and our Processor, with respect to the provision of payment services. In the event of a conflict between this Agreement and any other SmartMarket agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by California law as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in San Francisco County, California or federal court for the Northern District of California. Headings are included for convenience only, and shall not be considered in interpreting these Terms. The Terms do not limit any rights that SmartMarket may have under trade secret, copyright, patent or other laws.

Questions

If you have questions or regarding these terms, please email us, or write to the following address:

SmartMarket Inc. Attn: Legal Department San Francisco, CA
http://smartmarketmobile.com

Effective Date: February 11, 2011