Master Service Agreement

THIS MASTER SERVICE AGREEMENT (THIS "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN INDIVIDUAL OR A SINGLE ENTITY ("YOU" or "YOUR"), AND THE SMB EXCHANGE, INC ("SMBEXCHANGE") THAT SETS FORTH THE TERMS AND CONDITIONS FOR THE USE BY YOU OF SMBEXCHANGE'S SOFTWARE AND SERVICES AND/OR OTHER DOCUMENTATION PROVIDED THEREWITH (THE "SERVICE"). SMBEXCHANGE LICENSES THE SERVICE TO YOU UPON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, APPENDIX A. ORACLE SOFTWARE USE TERMS AND CONDITIONS, ACCEPTABLE USE AND SMBEXCHANGE'S NO SPAM POLICIES. PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING THE SERVICE. BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH TIME YOU ACCESS THE SERVICE, YOU AFFIRMATIVELY STATE THAT YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. SMBEXCHANGE IS UNWILLING TO PROVIDE YOU WITH ACCESS TO THE SERVICE UNLESS YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.

SMBEXCHANGE and You are sometimes referred to singularly as a "Party" or collectively as the "Parties."

You AGREE YOU shall use SMBEXCHANGE's Service only for lawful purposes.

1. Provision of Services.

The Service, consisting of access to certain application software, content and/or other information, and other content owned or licensed by SMBEXCHANGE and/or its suppliers, licensors or other third parties (collectively, the "Contributors"), is provided by SMBEXCHANGE, a California Corporation, through the Service located at www.thesmbexchange.com (the "Site"). SMBEXCHANGE agrees to provide the Service outlined in the SMBEXCHANGE Service Level Agreement (the "SLA") and You agree to strictly abide by all Customer Responsibilities contained in the SLA in exchange for Your payment for the Service, Your execution and compliance with the terms and conditions of this Agreement, Appendix A. Oracle Software Use Terms and Conditions, and Your compliance with SMBEXCHANGE's Acceptable Use and No-Spam Policies, incorporated by reference herein. Provision of SMBEXCHANGE's Service shall commence once SMBEXCHANGE has received both Your payment for SMBEXCHANGE's Service and this Agreement duly executed by You. The SLA is governed by and subject to the terms and conditions of this Agreement.

YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU AND ANY PERSON TO WHOM YOU GRANT ACCESS TO THE SERVICE ABIDE BY THIS AGREEMENT AND HAVE REACHED THE AGE OF EIGHTEEN AND THAT YOU ARE NOT SUBJECT TO ANY LIMITATION ON YOUR ABILITY TO ENTER INTO THIS AGREEMENT.

2. Restricted License.

Subject to the terms and conditions of this Agreement, SMBEXCHANGE hereby grants to You (and You accept) a non-exclusive, non-transferable license to access and use the Service. All rights not expressly granted to You are hereby reserved by SMBEXCHANGE and/or the respective Contributor. SMBEXCHANGE and each Contributor shall have the right to assert and enforce the provisions of this Article 2 directly on its own behalf. You agree (a) to abide by this Agreement and any and all licensing agreements between a third party Contributor and You (collectively, the "Licensing Documents"); and (b) to keep Your authorized SMBEXCHANGE account ("Account") information confidential, including Your password, username and any other information related to the Service ("Account Information"), and to inform SMBEXCHANGE promptly upon the unintended and/or undesired disclosure of any portion of such Account Information.

3. Intellectual Property Rights.

It is hereby understood and agreed that as between SMBEXCHANGE and You, SMBEXCHANGE is the owner of all rights, title and interest, including all Intellectual Property Rights (as defined below), to the Service, and the Site. For the purposes of this Agreement, "Intellectual Property Rights" shall mean any and all of the following: (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including, but not limited to logos, "rental" rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).

Except as expressly provided herein, You do not acquire any rights to the Service through the purchase of licenses to the Service or the Site. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code) ("Source Code") of the components of the Service, or create derivative works based thereon. You also may not download, republish, reproduce, copy, post, transmit, or in any way distribute any material from the Site unless such activities are in direct furtherance of Your permitted use of the Service and do not in any way violate this Agreement or any Licensing Documents.

You are not permitted to: (a) rent, lease, assign or transfer all or any part of the Service and/or Your Account Information to any person or entity without the prior written consent of SMBEXCHANGE; (b) remove any proprietary notices, labels, or marks on any component of the Service (or the Service or Site generally), whether in machine language or Source Code; (c) use the Service to provide a service bureau by which the Service can be accessed by third parties or by which information produced pursuant to the Service is sold or given to third parties via pay per call or other arrangements; or (d) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without the prior written consent of SMBEXCHANGE (any attempt to sublicense, assign, delegate or transfer this license, either by contract, statute, corporate merger of any sort, regulation or court order, without the prior written consent of SMBEXCHANGE shall be voidable at SMBEXCHANGE's sole and absolute discretion). Failure to comply with these restrictions will result in automatic termination of this Agreement.

You expressly warrant and represent to SMBEXCHANGE that You have the right to use any patented, copyrighted, trademarked or proprietary material which You use, post, or otherwise transfer to or by way of the Service.

4. Privacy.

SMBEXCHANGE will not disclose any personal information about Your use of the Service in violation of SMBEXCHANGE's Privacy Statement.

5. Payment.

You are responsible for paying all fees and charges (plus applicable taxes) associated with Your use of the Service (the "Service Fee") as such fees become due. Unless otherwise stated in a writing from SMBEXCHANGE, You must make payment of all fees and charges by a valid, approved credit or charge card prior to the month during which You wish to access and/or use the Service. Except as otherwise provided in this Agreement, all fees and charges are non-refundable. You agree to be billed monthly via your credit card for all recurring and one-time charges, including late and termination charges, for any of SMBEXCHANGE's services ordered by You and any fees You owe to SMBEXCHANGE. Invoice information is provided to You via your request from within in the Exchange Web Portal.

You understand and agree that You are responsible for monitoring and maintaining your accounts within all plan-specified usage limits. In the event your usage exceeds these limits for your account, You agree SMBEXCHANGE may charge You, at the then-published price on the Site, for such excess usage. Usage and associated charges for excess usage shall be determined based solely by SMBEXCHANGE's statistical information. Unused monthly allotments shall not accrue or carry over from one month to any other month.

6. Term.

This Agreement shall continue until terminated pursuant to Article 7 below.

7. Termination.

Either Party may terminate this Agreement without reason effective upon thirty (30) days notice to the other Party ("Settlement Period"). You recognize that SMBEXCHANGE is anticipating and making other business arrangement to improve the Service based on Your continued use of and payment for the Service during the Settlement Period. The Parties acknowledge that at the time this Agreement is being entered into it would be difficult to ascertain SMBEXCHANGE's damages if You fail to pay the Service Fee during the Settlement Period. Therefore, You agree to pay SMBEXCHANGE the entire Service Fee due for the Settlement Period and, provided that You make such payment, SMBEXCHANGE agrees to continue providing you with access to and use of the Service pursuant to this Agreement's terms and conditions. Notwithstanding the foregoing, SMBEXCHANGE may immediately terminate this Agreement and Your Account upon (a) Your breach of any provision of this Agreement or (b) any action by You that SMBEXCHANGE determines, in its sole judgment, to interfere with the operation or use of the Service. In the event of immediate termination, SMBEXCHANGE shall be entitled to keep the entire Service Fee for the month in which such termination occurred and You shall not be entitled to any refund thereof. Any provision of this Agreement which may reasonably be interpreted or construed as surviving the termination of the Agreement, shall survive such termination of this Agreement for any reason.

8. Equipment; Operation.

You are solely responsible for acquiring and maintaining all computer hardware and software, telephone, and other equipment, and all communications and other services needed for access to and use of the Service. SMBEXCHANGE reserves the right at any time and for any reason to modify or discontinue any aspect or feature of the Service, including, but not limited to, the Service's content, functionality, the equipment to access or use the Service.

9. Hyperlinked Material.

Hyperlinked Material. The Site may contain hyperlinks to other sites on the Internet which are not owned or controlled by SMBEXCHANGE. SMBEXCHANGE cannot assume any responsibility for any material on such sites, or any other material outside of the Site, which is accessed directly or indirectly by any such hyperlink.

10. Security and Data Storage.

You shall not permit or allow other persons to have access to or to use Your Account Information other than Your employees, consultants or agents who have been notified of the restrictions set forth in this Agreement, absent SMBEXCHANGE's prior express written consent. You agree to maintain the confidentiality of all of Your Account Information and agree to be primarily responsible for all activity pursuant to Your Account. Although SMBEXCHANGE has taken significant measures to ensure the security of information submitted by You in using the Service, SMBEXCHANGE cannot guarantee the security of information collected during Your use of the Service and shall not be liable in any way for compromise of Your data.

SMBEXCHANGE may, in its sole discretion, reject material or data that You have placed, attempted to place, or have requested be placed on the SMBEXCHANGE's servers. SMBEXCHANGE agrees to notify You immediately of its rejection of the material or data and provide You with an opportunity to amend or modify the material or data to meet the requirements of SMBEXCHANGE.

11. Relationship of the Parties - Independent Contractor.

It is expressly understood and agreed that the relationship between the Parties is as follows: each Party is acting as an independent contractor and is not an agent, partner, or joint venture with the other Party for any purpose. The Parties have no authority to assume or create any obligation for or on behalf of the other Party, express or implied, with respect to this Agreement or otherwise.

12. SMBEXCHANGE WARRANTIES.

NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT OR THE SLA TO THE CONTRARY, THE SERVICE IS FURNISHED "AS IS" AND WITH ALL FAULTS. SMBEXCHANGE MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. SMBEXCHANGE AND ITS CONTRIBUTORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, AND/OR THE FAILURE TO PROVIDE ADEQUATE SUPPORT FOR THE SERVICE. SMBEXCHANGE DOES NOT WARRANT THAT THE SERVICE IS FREE OF INACCURACIES, ERRORS, BUGS, INTERRUPTIONS OR OTHER PROGRAM LIMITATIONS. NOR DOES SMBEXCHANGE WARRANT THAT THE SITE, OR SERVER THAT MAKES IT AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU, AND YOU AGREE TO ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS.

YOU SPECIFICALLY AGREE THAT SMBEXCHANGE SHALL NOT BE RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSMISSION(S) ENTERED IN THROUGH THE SERVICE, ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSIONS, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION. YOU ALSO AGREE THAT SMBEXCHANGE IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.

13. LIMITATION OF LIABILITY.

You acknowledge that the operation and availability of the communications systems, including, without limitation, telephone service, computer networks and the Internet, used for accessing and interacting with the Service can be unpredictable and may, from time to time, interfere with or prevent access to or operation of the Service. You acknowledge that SMBEXCHANGE is not responsible for any such interference with or prevention of Your use of or access to the Service.

Likewise, no Contributor (including, but not limited to, SMBEXCHANGE) shall be liable for any indirect, punitive, special, incidental, or consequential damages (including damages for loss of business, loss of data or profits or investment, or the like), in any way connected with the use or performance of the Service, with the delay or inability to use the Service, the provision of or failure to provide the Service, or for any information, software, products, service and related graphics obtained through the Service, or otherwise arising out of the use of the Service, whether based on breach of contract, breach of warranty, tort (including negligence, product liability or otherwise), cost of cover, or any other pecuniary loss arising out of the use of or inability to use the Service or the failure to provide support therefore, even if SMBEXCHANGE or any of the other Contributors have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. In any case, no Contributor shall be liable under this agreement for more than the amount You actually paid to SMBEXCHANGE in a single month for the Service or $30 US, whichever is greater.

SMBEXCHANGE will exercise no control over the content of the information passing through SMBEXCHANGE's network except those controls expressly provided herein.

14. Indemnification.

You agree to indemnify and hold harmless each and every Contributor, and their respective affiliates, officers, directors, employees, consultants, agents, licensees and licensors from any claim, demand, or damages, including reasonable attorneys' fees, asserted by any third party due to, arising out of, or in any way related to, the use of the Service under Your Account. As used in this Agreement, "affiliate" means any entity which controls, is controlled by, or is under common control with the named entity.

15. Equitable Relief.

You acknowledge that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of SMBEXCHANGE's damages for the breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain SMBEXCHANGE's damages. Accordingly, if You breach or threaten to breach any of Your obligations, other than payment when due, SMBEXCHANGE shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting SMBEXCHANGE from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.

16. Notice.

Any notice required by this Agreement or given in connection with it, shall be in writing and shall be effective one (1) business day after it is sent to the appropriate Party by personal delivery or by recognized overnight delivery service or seven (7) business days after being sent via first class mail postage prepaid, to Your address as provided in the registration application submitted previously to SMBEXCHANGE and/or to The SMB Exchange at 943 York St, San Francisco, California 94110, or to such other address as a Party may provide by written notice to the other Party from time to time.

17. Governing Law/Jurisdiction.

This Agreement shall be governed by and construed under the laws of the State of California, without reference to principles of conflict of laws, and any action brought by the Parties to enforce or interpret any provision of this Agreement shall be brought exclusively in an appropriate state court in Santa Clara County or federal court in the Northern District of California. The Parties hereby consent to such jurisdiction and waive any objection to such venue.

18. General.

This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges and supersedes all prior agreements, writings, commitments, discussions and understandings between them. Appendix A., the SLA, No-SPAM Policy, Acceptable Use Policy and SMBEXCHANGE's Privacy Statement are meant to complement this Agreement; if, however, any term or condition of this Agreement is inconsistent therewith, this Agreement shall supercede and control all such conflicting terms and conditions. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. Failure by SMBEXCHANGE to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming Party. This Agreement shall be construed within its fair meaning and no inference shall be drawn against the drafting Party in interpreting this Agreement. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. Except as otherwise stated in this Agreement, SMBEXCHANGE reserves the right to modify this Agreement or policies regarding the use of the Service at any time and to notify You of such modification by posting a notice of such modification to the Site at least thirty (30) days prior to such modification taking effect, and by posting the modified Agreement to the Site. You are responsible for periodically reviewing this Agreement. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

YOU HEREBY RECOGNIZE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE AGREEMENT'S TERMS AND CONDITIONS.